Ranjan Gogoi, J.
1. An Order dated 21.7.2001 dismissing the petitioner from service on a charge of bigamy after holding a departmental enquiry into the said charge is the subject-matter of challenge in the present writ petition.
2. The facts, in brief, may be noticed at the outset.
At the relevant point of time, the petitioner, Shri Amal Kumar Baruah, was working as an Armed Branch Constable. On 3.4.1997 one Smti. Minu Baruah claiming to be the legally married wife of the petitioner submitted a petition before the Superintendent of Police, North Lakhimpur informing the said authority that the petitioner had married another girl on 26.3.1997 and, thereafter, he had not been extending any financial assistance to the complainant and her four children. The Superintendent of Police, North Lakhimpur examined the petitioner in his office on 7.4.1997 in the course of which the petitioner allegedly confessed that he had, indeed, contracted a second marriage. Thereafter, a formal charge memo was issued against the petitioner drawing up a departmental proceeding against him on the charge of commission of bigamy and thereby violating the provisions contained in Rule 26 of the Assam Civil Service (Conduct) Rules, 1965.
3. Though not on record, the petitioner appears to have filed a written statement wherein the thrust of the explanations offered was with regard to the justification for the second marriage and not the denial thereof. According to the petitioner, his first wife was keeping indifferent health and,, therefore, to enable him to discharge his duties properly and also to look after his four children he was compelled to contract a second marriage. The authority, not being satisfied, appointed an Enquiry Officer to enquire into the charges. The Enquiry Officer recorded the statements of the first wife of the petitioner, Smti. Minu Baruah, and the Reserve Officer and thereafter on the conclusion of the enquiry submitted his report to the effect that the charge against the petitioner stood established. The report of enquiry is dated 6.5.1999. Thereafter, on 7.1.2000 the Disciplinary Authority of the petitioner issued a notice to the petitioner enclosing a copy of the Enquiry Officer's report and asking him to show cause as to why he should not be dismissed from service. The petitioner showed cause on consideration of which the impugned Order dated 21.7.2001 has been passed which has been assailed in the present writ application.
4. I have heard Mr. D. R. Gogoi, learned Counsel for the petitioner and Mr. H. K. Mahanta, learned Government Advocate, Assam.
5. Sri Gogoi, learned Counsel for the petitioner, in the course of his argument has submitted that the complaint of the first wife in respect of the second marriage entered into by the petitioner was only in the context of the apprehensions of the first wife that she may not receive any financial assistance from the petitioner for her upkeep and also for the upkeep of the four children. The complaint, therefore, was not against the second marriage as such. Sri Gogoi, learned Counsel for the petitioner, has further referred to the statements of the first wife recorded in the course of the enquiry wherein she had admitted that after the second marriage the petitioner had been looking after his earlier family and that the second wife was living in the same family and that there was no difficulties in adjusting to the new situation. On the aforesaid facts, learned Counsellor the petitioner has contended that the Disciplinary Authority ought not to have proceeded any further with the departmental enquiry and in any event ought not to have imposed the extreme punishment of dismissal from service on the petitioner.
Sri Gogoi, learned Counsel for the petitioner, in the course of his argument, has also contended that under Rule 26 of the Assam Civil Service (Conduct) Rules, 1965 a second marriage, per se, does not amount to misconduct. What the Rules require is prior permission of the authority to enter into a second marriage and in the present case it is not the finding of the Enquiry Officer that the second marriage of the petitioner was without due permission. In such circumstances, the Order imposing punishment is contended to be legally invalid. A further argument has been made by the learned Counsel for the petitioner that in the conduct of the enquiry against the petitioner he was not given adequate opportunity to engage a defence assistant and to cross-examine the persons examined by the Enquiry Officer in support of the charges. The conduct of the enquiry, therefore, is contended to be in violation of the principles of natural justice.
6. Sri H.K. Mahanta, learned Government Advocate, Assam, while controverting the arguments advanced on behalf of the petitioner has submitted that in the present case the petitioner had virtually admitted that he had entered into the second marriage during the subsistence of the first and being a member of a disciplined force, the punishment of dismissal from service is just, proper and adequate and no interference will be called for from this Court.
7. I have considered the arguments advanced on behalf of the rival parties.
It is not the petitioner's case that the second marriage entered into by him was with due permission. In the written statement filed by the petitioner as well as in the course of the enquiry and, in fact, at no stage, the petitioner had contended that requisite permission for entering into the second marriage was received by him. Before this Court also it is not the stand of the petitioner that permission was accorded to him. In such circumstances, it is difficult to visualize as to how the absence of a finding by the Enquiry Officer that the second marriage of the petitioner was without due permission of the appropriate authority can be held by the court to have vitiated the conclusions reached and the punishment imposed.
8. The petitioner having virtually admitted his second marriage at all stages, strictly speaking, there was no necessity of a formal enquiry. In such a situation, this Court will hardly be required to go into the question as to whether reasonable opportunity to defend himself was denied to the petitioner in the enquiry held and whether the said enquiry is vitiated for violation of the principles of natural justice.
This will bring the court to the last question which is the core issue in the case, i.e., whether the punishment imposed on the petitioner is so grossly disproportionate that this Court must exercise its rare power under Article 226 of the Constitution to interfere with the punishment imposed. A significant fact which must be noticed at this stage is that the report of enquiry, which is available on record, indicates that the first wife of the petitioner had, in the course of the enquiry, virtually withdrawn her complaint by saying that, after the second marriage the petitioner is looking after her and the children and that the second wife has become a part of their family.
A decision has been cited at the Bar which is reported in (1995) 2 GLR 388 (Prafulla Kalita v. Oil and Natural Gas Commission, Dehradun and Ors.) wherein a Co-ordinate Bench of this Court had taken the view that an allegation of bigamous marriage not being connected with performance of duties by the concerned incumbent, even if such a marriage had been proved in a departmental enquiry, the same cannot invite the extreme punishment of dismissal. The punishment imposed was, therefore altered. The decision in Prafulla Kalita (supra) was taken in appeal and relying on a Supreme Court judgment in the case of State Bank of India v. Samarendra Kishore Endow and Anr. reported in : (1994)ILLJ872SC , the Division Bench interfered with the decision of the learned Single Judge in Prafulla Kalita (supra). In State Bank of India (supra), the Apex Court had taken the view that the High Court in the exercise of power under Article 226 will not be vested with the authority to alter the punishment imposed by the disciplinary authority. The Division Bench of this Court while over-ruling the view taken by the learned Single Judge in Prafulla Kalita (supra), however, did not touch upon the correctness of the view recorded by the learned Single Judge to the effect that a bigamous marriage not being connected with due discharge of duties, should not invite the extreme punishment of dismissal. The interference of the Division Bench was only on the basis of the law laid down by the Apex Court in State Bank of India (supra), i.e., availability of the power to substitute the punishment imposed. The Apex Court, soon thereafter, in the case of B.C. Chaturvedi v. Union of India and Ors. reported in : (1996)ILLJ1231SC had gone back to the earlier view prevailing, namely, the High Court in an appropriate case would have the power to alter the punishment imposed provided such punishment is found by the High Court to be grossly disproportionate or the quantum of the punishment shocks the conscience. of the court. It may be noticed at this stage that after the decision of the Apex Court in B.C. Chaturvedi (supra) a Division Bench of this Court in Trilok Singh Rawat v. Union of India 2000 Vol. III GLT 558 had approved the view taken by the learned Single Judge of this Court in Prafulla Kalita (supra). The Division Bench had interfered with the punishment of dismissal imposed on a charge of bigamy and imposed a lesser punishment.
9. The Apex Court in several subsequent decisions including the one in the case of V. Ramana v. A. P. SRTC and Ors. reported in : (2005)IIILLJ725SC , referred to at the Bar, has taken the view that the proportionality of the punishment imposed should be judged by application of the Wednesbury principles and on application of such principles if the court is satisfied that the punishment imposed is disproportionate or shockingly excessive, the High Court would have the option to sending the matter back to the authority or in an appropriate case to impose the punishment itself. The facts in V. Ramana (supra) must be noticed at this stage. In Ramana's case the Apex Court was dealing with the punishment of dismissal imposed on a Conductor of the Andhra Pradesh State Road Transport Corporation who was found to have acted in breach of trust in not issuing tickets to the passengers as required and in not maintaining proper records of tickets issued and fares collected. In short, what is sought to be emphasized is that in Ramana's case the misconduct was in the context of performance of duties of the post held by the incumbent. In the present case, clearly and evidently, the second marriage of the petitioner has nothing to do with either his official position or discharge of official duties.
10. The act of entering into a second marriage during the validity of the first marriage, if such second marriage is not permissible under the personal law of the concerned person, is an offence covered by Section 494 of the Indian Penal Code. However, by virtue of the provisions contained in Section 320(2) of the Code of Criminal Procedure the offence under Section 494 of the Indian Penal Code is compoundable with the leave of the court. Section 320(8) of the Cr.P.C. contemplates that on an offence being compounded in the accordance with the provisions of Section 320, the person charged with the offence stands acquitted. Section 320 a of the Code of Criminal Procedure does not make all the offences under the Indian Penal Code compoundable. There are some offences which are compoundable without permission of the court and some other offences are compoundable with permission of the court. There is a third category of offences which are not compoundable at all. The effect of an offence , being compounded has also been noted. From the above provisions of the Cr.P.C. it will not be incorrect to come to the conclusion that the law itself treats different offences on a different, if not unequal, footing. The aforesaid fact would be relevant because it furnishes an objective basis for deciding as to what punishment should be imposed on a delinquent in a departmental proceeding where the subject-matter of the charge also amounts to a criminal offence. Punishment imposed by the employer in a disciplinary proceeding must always be by application of objective standards and not on the basis of personal perceptions of the disciplinary authority. It is here where the provisions contained in Section 320 of the Code of Criminal Procedure making the offence of bigamy a compoundable offence would furnish a reasonable, objective and acceptable basis for imposition of punishment in a departmental proceeding where the charge also is one of bigamy. For commission of misconduct under the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 seven different shades of punishment starting with censure and ending with dismissal from service is contemplated. Which particular punishment should be imposed in a particular case, undoubtedly is the prerogative of the employer. But such a decision has to be taken on an objective basis and not on individual and personal perceptions. When the charge of bigamy under the criminal law has been made a compoundable offence, compoundable at the volition of the affected parties, the effect of which is an acquittal of the offender, the extreme punishment imposed on the petitioner in the present case in a ' situation where the first wife had virtually withdrawn her complaint, cannot but be understood to be wholly disproportionate and made without due application of mind. Any action without due application of mind cannot have judicial approval. If another punishment which could have brought in lesser consequences can be contemplated, the imposition of extreme punishment of dismissal has to be construed by the court to be disproportionate.
11. I, therefore, interfere with the punishment imposed and as the same had been so imposed without due consideration of the relevant facts and circumstances as pointed out in the present order, am of the view that the authority should be directed to reconsider what should be the correct measure of punishment to be imposed on the petitioner. Such reconsideration will be done by the authority within a period of 45 days from the date of receipt of a certified copy of this Order and if on such reconsideration any other punishment is imposed on the petitioner which may have the effect of his reinstatement in service, I deem it appropriate to leave it to the authority to make appropriate orders for award of such consequential benefits as may be found to be due to the petitioner.
12. The impugned Order dated 21.7.2001 is, therefore, set aside and the writ application, consequently, stands partly allowed, as indicated above.