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Tanaji Dhondlba Awale Vs. State of Maharashtra (Through Collector of Satara) and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 63 of 1982
Reported in1984(2)BomCR695
ActsSpecific Relief Act, 1963 - Sections 34; Hindu Marriage Act, 1955 - Sections 2, 5 and 7;
AppellantTanaji Dhondlba Awale
RespondentState of Maharashtra (Through Collector of Satara) and anr.
Appellant AdvocateRajiv S. Mohite, Adv.
Respondent AdvocateS.G. Page, A.G.P., for respondent Nos. 1 and 2
DispositionAppeal allowed
family - bigamy - section 34 of specific relief act, 1963, sections 2, 5 and 7 of hindu marriage act, 1955 and section 414 (2) of bombay police manual - appeal against order removing appellant from service as he had contracted second marriage contravening section 414 (2) - appellant was married man at time of so-called second marriage with a - a was married woman - a's marriage was subsisting at time of marriage with appellant - it cannot be said that second marriage was contracted between appellant and a - no evidence on record to prove solmenization of marriage - so called second marriage could not be considered marriage at all - section 414 not applicable in such case - held, appeal against order allowed. - maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter.....sharad manohar, j.1. this is the plaintiff's appeal against the decree passed by the lower appellate court allowing the defendant's appeal and dismissing the plaintiff's suit with no order as to costs.2. while his first wife was living, the plaintiff is alleged to have entered into a repeat wedlock with a woman, whose husband was very much alive. the plaintiff was a member of the armed constabulary of the police force. when this position of the plaintiff's alleged second marriage came to the knowledge of the higher authorities of the department, they issued him a show-cause notice, held inquiries and in view of the fact that the plaintiff had entered into some kind of sexual relationship with another married woman held that he had contracted a second marriage with her and holding that.....

Sharad Manohar, J.

1. This is the plaintiff's appeal against the decree passed by the lower Appellate Court allowing the defendant's appeal and dismissing the plaintiff's suit with no order as to costs.

2. While his first wife was living, the plaintiff is alleged to have entered into a repeat wedlock with a woman, whose husband was very much alive. The plaintiff was a member of the armed constabulary of the Police Force. When this position of the plaintiff's alleged second marriage came to the knowledge of the higher authorities of the Department, they issued him a show-cause notice, held inquiries and in view of the fact that the plaintiff had entered into some kind of sexual relationship with another married woman held that he had contracted a second marriage with her and holding that this amounted to contravention of section 414(2) of the Bombay Police Manual, calling for highest punishment, passed an order removing him from the service. The validity of this order was called in question by the plaintiff by filing the instant suit. The trial Court accepted his contention and decreed the suit declaring the order of his removal from service to be bad in law and ordering the Government to pay him all the back wages. This decree was, however, set aside by the Appeal Court and, hence, this second appeal.

3. The salient features are those mentioned above; but details about the same are also necessary for the purpose of this judgment. The full statement of the relevant facts is as follows :

(a) In 1960 the plaintiff was married to one Parvatibai. From this Paravatibai he has had 6 children. He joined the Police Force on 22-12-1961 and became a member of the armed constabulary. On 5-4-1972, it is alleged, he married one Subhadrabai, daughter of one Hanmant Avaghade. It will be presently pointed out that whatever relationship this union might have brought about, no legal, valid marriage, recognised by law, could ever be brought about by such union, for two reasons :

(1) It is nobody's case that the ceremonies as required for the purpose of marriage such as Hoam, etc., were performed; and

(2) Not only that the plaintiff was having his first wife living at the time of the so-called marriage, but even Subhadrabai was already married at that time; her first husband was very much living and no proceedings for divorce from her husband, in any manner whatsoever, had been taken by her from her husband.

(b) The fact, however, remains that allegedly something analogous to marriage of the plaintiff with said Subhadrabai happened to take place on this date, 5-4-1972.

(c) On 13-6-1972 the plaintiff was on duty at Koyananagar Dam. On that date, he made an application to the authorities for cancellation of his duty for one day as his wife Paravatibai was due for delivery. At the time of the application, he happened to mention to the Reserve Police Inspector, Shri Siddiki that he had a second wife and that the second wife was ill and hence that second wife could not look after the first wife who was ill and hence that second wife could not look after the first wife who was at the delivery stage. Upon getting hold of this precious information, the Reserve Police Inspector Shri Siddiki recorded the statement of the plaintiff to the effect that he had got a second wife. On 14-6-1972 he forwarded the said statement of the plaintiff together with his application for cancellation of his duty dated 13-6-1972, to the District Superintendent of Police. Upon receiving this information, the District Superintendent of Police directed the Reserve Police Inspector, Shri Siddiki to conduct a preliminary enquiry. But instead of conducting the enquiry himself, he assigned that job to one of the constables one B.G. Pawar and said constable B.G. Pawar held the enquiry. For that purpose, he recorded the statements of Parvatibai and Subhadrabai. Subhadrabai's statement is very relevant. She stated that she was married to the plaintiff, but she also stated in so many words, further that at the time of her marriage with the plaintiff she was already married. She stated that her first marriage had taken place with one Baba Tadake about three years before the date of the statement. She further stated that from the date of the marriage she had not gone to reside with him at all, because she did not approve of her husband. She also stated that she had given a notice to her husband and that a copy of the notice was there with her at her parental place. She further stated that on 5-4-1972 she was married to the plaintiff but she stated further that the marriage took place only by the tying of knots (of their respective apparels). Not one word was asked to her and not one word was stated by her on the question whether any ceremonies required for a valid marriage were performed or not. She also stated that she was never aware of the fact that contracting a second marriage was an offence in law.

(d) The statement of Parvatibai was also recorded. She also stated that Subhardrabai had been living with her husband as his second wife. But she herself stated that she herself was a married wife of her husband. She described herself as a wife by marriage. She stated that Subhadrabai had been married to the plaintiff by a ceremony of tying of knots. In other words, she herself made a distinction between a traditional marriage or a conventional marriage on the one hand and this marriage of convenience, if it may be so-called, by tying of knots of the apparels, on the other hand.

(e) The District Superintendent of Police appointed the Deputy Superintendent of Police, Satara, Shri Chayubal, to hold the departmental entry against the plaintiff. Accordingly, the departmental enquiry was held against him and charge was framed against him by the officer under section 414(2) of the Bombay Police Manual.

(f) The plaintiff filed his written statement. He denied having committed the act of bigamy. He denied that there was any second marriage with Subhadrabai as such. He contended that the ceremony that took place between himself and Subhadrabai was not a marriage but a Mhotur which was recognised in his community but which was not a marriage as such as is recognised by law. He stated in so many words that Subhadrabai was nothing but a kept mistress. He, however, admitted that she had been staying in his house along with his wife Parvatibai.

(g) In the curse of the inquiry, the statements of Parvatibai and Subhadrabai were recorded. They made the same statements as referred to above. But in addition to that, statement of one Chandrabai, mother of Subhadrabai, was also recorded. The significant fact is that even this Chandrabai has stated in so many words that at the time when this Mhotur took place between the plaintiff and said Subhadrabai, Subhadrabai was already a married woman and her husband was very much living. The statements of some other persons were also recorded. But no evidence came on record to show that any ceremonies which bring about a valid marriage such as the HOAM or SAPTAPADI were ever performed.

I will presently mention the reason why I am referring to this aspect of the evidence or rather the lack of evidence with particular stress.

4. On 19-10-1972 a notice came to be issued against the plaintiff to show cause as to why he should not be removed from service. The plaintiff gave his reply on 21-10-1972 in which he denied the offence. He also contended that the proposed punishment was excessive. On 11-11-1972, an order was passed against the plaintiff for his removal from service w.e.f. 15-11-1972. He filed an appeal against the said order. But the appeal was rejected on 5-2-1973. His revision application was rejected by the Inspector General of Police on 5-9-1973. He filed a second revision application to the Government. But even the second revision application was rejected by the Government on 29-12-1973.

It is in these circumstances that the plaintiff filed the present suit on 1-8-1974 (after giving requisite notice under section 80 of the Civil Procedure Code) for a declaration that the order of his removal from service dated 11-11-1972 was bad in law, for the various reasons mentioned in the plaint and for a declaration that he continues to be in the service and, further, for payment of all the back wages from the date of his illegal removal.

5. By their written statement (Exh. 16) the defendant resisted the suit. Their first contention was that in the departmental inquiry, it was established that the plaintiff had contracted the second marriage on 5th April, 1972 with Subhadrabai. Contention was that in this view of the matter it was found in the departmental inquiry that the charges levelled against the plaintiff were proved. The order of removal was ought to be justified by the defendant mainly on this account.

It was further contended in the written statement that not only in his application dated 10th March, 1972 but also in the statement of the plaintiff's two wives, Parvatibai and Subhadrabai, it was clearly stated that the plaintiff had contracted second marriage with Subhadrabai. Contention was that all these witnesses were offered for cross-examination during the inquiry and that the evidence also disclosed that the second wife was staying with the plaintiff and with his first wife openly and that the marriage was even consummated.

The various allegations relating to defects in the preliminary inquiry and the departmental inquiry were denied. It was contended that the plaintiff bad no cause of action for the suit.

It may be mentioned here that there was no plea raised denying the Civil Court's jurisdiction to entertain the suit.

6. On these pleadings, issue were framed by the learned Judge and evidence was led by the parties and after examination of the evidence, the learned trial Judge came to the conclusion that the charge framed against the plaintiff was not proper at all. He also held that the preliminary inquiry held against the petitioner by a constable was bad in law. He held that the departmental inquiry made by the Deputy Superintendent of Police was illegal and bad as per Rule 441 of the Bombay Police Manual. He also held that no reasonable opportunity was given by the officer conducting the inquiry to the plaintiff for defending himself at the time of the departmental inquiry. He also held that the officer holding the departmental inquiry had violated the rule of natural justice. He negatived the defendant's contention that the plaintiff had no cause of action to file the suit. The suit was, therefore, decreed by the learned trial Judge declaring that the order of dismissal passed against the plaintiff dated 11th November, 1972 was illegal and void ab inito and that the plaintiff continued to be in the service of the Government. It was also declared by the learned Judge that the plaintiff was entitled to the arrears of pay and allowances and other service benefits admissible to him and that the Government was ordered to reinstate the plaintiff in the service, provided he was not age-barred in that behalf. The plaintiff's suit was, thus, decreed by the trial Court in toto with costs.

7. In the appeal filed by the Government, however, the learned Extra Assistant Judge took the view that there was nothing wrong with the departmental inquiry held against the plaintiff virtue of the direction of the District Superintendent of Police given in that behalf. He also held that the preliminary inquiry held by constable Pawar could not be said to be by a person not competent to hold that preliminary inquiry. He negatived the plaintiff's contention about the alleged illegality in the departmental inquiry; he also rejected the plea that the plaintiff was deprived of any reasonable opportunity to defend himself in the inquiry or that any of the principles of natural justice were flouted by the Inquiry Officer during the inquiry. In this view of the matter, the appeal was allowed by the learned Judge and the suit filed by the plaintiff was dismissed by the learned Judge making no order as to costs.

8. When the hearing of the appeal started, initially I felt, even before going into the merits of the impugned order, that the punishment sought to be inflicted upon the plaintiff was quite out of proportion. It was not contended before me or before any of the courts or authorities that at the relevant times the two wives were not staying with the plaintiff amicably and nothing was shown that there was any particular disharmony in the family occasioned by the so-called second marriage of the plaintiff. However, it was disclosed before me that the second wife had left even the plaintiff almost immediately after the marriage. I, therefore, called upon the Assistant Government Pleader Shri Page to ascertain whether the Government would like to have a second look at their own order and would not be persuaded to revise its own order, replacing the same by some milder order. Time and again the hearing of the appeal was adjourned. But ultimately I was informed that, for the reasons best known to themselves, the Government had decided to treat this case as a prestige case and was in no mood to revise its own order or to have a second look at its opinion relating to the propriety of the said order. In this view of the matter, I had no other option but to hear the appeal at length on merits.

But when I examined the merits of the appeal, I found that there exist several reasons as to why the order passed by the Government cannot be sustained at all.

9. In the first place, It can be seen that the impugned order is passed upon no evidence whatsoever. The order is based upon the conclusion that the plaintiff had married a second wife. But this conclusion is arrived at by confusion of two concepts; the concept of marriage, as recognised by the Hindu Marriage Act, and other relationship between a man and a woman analogous to marriage but not recognised by law to be in the nature of marriage.

In this connection, the admitted fact is that not only that the plaintiff was a married man at the time of the so-called second marriage, but even his so called second wife Subhadrabai was an already married woman at the time of that marriage. The significant fact is that her marriage with her husband Baba Tadake was a subsisting marriage at the time of her so-called marriage with the plaintiff. In the eyes of law, there cannot come into existence a marriage between one married man whose wife is living, with another married woman, whose husband is very much living and when the earlier marriages of both the spouses are very much living and when the earlier marriages of both the spouses are very much subsisting. Whatever the relationship the ceremony or the function held for the purposes of declaring the second marriage may bring about, the ceremony or the function would not bring about the position of marriage between such two persons. Section 414(2) looks down upon contracting of second marriage by a Government servant. As will be presently pointed out the section, in the first place, has got reference only to cases where second marriage is not prescribed by the personal law of the Government servant. But even apart from that aspect of the matter, what is required for the second marriage is the matrimonial relationship between two persons of opposite sexes, who have not already entered into such relationship with other spouses and which relationship is not subsisting on the date of the alleged second marriage. If such relationship is already there, if the two spouses have already hitched themselves with other respective spouses and their earlier marriage are subsisting, their spouses very much living what is brought about by the ceremonies if the second marriage is no marriage in the eyes of law at all. When a person is said to be contracting a second marriage with another person, the contract envisaged is a legal and valid contract in the eyes of law. When the contract is on the face of it illegal and inconceivable, the ultimate relationship brought about is not one of marriage. It cannot be said that the second marriage is 'Contracted' either by the woman or by the man. In this view of the matter section 414 does not come into play at all.

10. Section 414(2) will not come into play also because there exist no evidence on record to show that any of the requisites for a valid marriage has been gone into and observed or complied with by these two persons, the plaintiff and Subhadrabai, at the time of the so-called second marriage. All that has come on record in the departmental inquiry is that the two apparels of the so called spouses were tied together by a knot and that was, according to the Department, a full-fledged marriage. The plaintiff has been crying hoarse from the house-tops that such ceremonies can be called a marriage only in the loose sense of the term, but that in the real legal sense that is not a marriage at all. He has mentioned that according to the custom of his community, this is called a Mhotur which is something very much different from the marriage envisaged by the Hindu Marriage Act. This factual position cannot be controverted and has not been controverted in the departmental proceedings. But the authority has proceeded upon the belief that going into this Mhotur is nothing but going into the holy wedlock contemplated by the Hindu Marriage Act. I find no reason to subscribe to such a view.

11. In this connection, it is to be noted that the law in this behalf is quite strange and anomalous. If a man marries a second wife by going through all the requisites of a valid marriage and by getting the marriage duly 'solemnised', he will be committing an offence in law. But if he openly keeps another woman as his mistress, any amount of moral turpitude that he might be deemed to be displaying no offence as such can be said to have been committed by him. Similar is the position under the departmental rule. Section 414(2) does not cavil at a married Government servant living with a kept mistress. The rule looks askance only at a Government servant going through the ritual of the marriage ceremony before entering into a particular kind of relationship with a second woman. Whether such a state of affairs is advisable or not is a question for the sociologists and the Law-markers to ponder over if they can spare some time for it. Fact remains that this is the position today. The plaintiff has stated in so many words in his written statement in the departmental proceedings that Subhadrabai, in the legal sense, is his kept-mistress. The entire evidence on the record cried hoarse in his favour. There was no evidence to the contrary whatsoever. In these circumstances, the conclusion arrived at by the authorities concerned to the effect that the plaintiff had contracted a second marriage spurned by section 414(2) of the Bombay Police Manual is a perverse conclusion, wholly unjustified from any stand-point.

12. Mr. Mohite, the learned Advocate for the plaintiff, rightly relied upon the judgment of the Supreme Court in the case on Bhaurao Shankar Lokhande and another v. The State of Maharashtra and another 1965 (2) C L J 544.

The question involved there was analogous to the question involved in the present case. In that case, the question was as to whether a particular second marriage alleged against the accused was 'solemnised' within the meaning of the Hindu Marriage Act. In that case, it was found that the accused was living with a woman other than his married wife. She was alleged to be his wife. But in the criminal proceedings it was not proved that the ceremonies required for solemnisation of the marriage were gone into or performed. In these circumstances, the Supreme Court held that no solemnisation of the marriage was proved and in that view of the matter the order of conviction passed against the accused was set aside by the Supreme Court.

In the instant case one has only to substitute the words 'solemnisation of marriage' by the words 'contracting a second marriage' and one would realise that the authority is applicable to the present case on all fours. One of the tests I would apply is as to whether on the same evidence which was before the departmental authorities, a Criminal Court could ever pass an order of conviction against the accused. If the Criminal Court knew that Subhadrabai was a married woman with the marriage subsisting and had found that the ceremonies for solemnisation of marriage were not proved at all, no Criminal Court could have come to the conclusion that the plaintiff was guilty of the offence of bigamy. The test could not be different in the departmental proceedings. It is true that in the departmental proceedings the test of strict proof may not be as grave as in the case of criminal proceedings; but all the same even in the departmental proceedings the inference to be drawn by the authorities has to be justified by some evidence on record. If there exist no evidence on record to prove solemnisation of the marriage and if, on the other hand, there is evidence crying hoarse that the so-called second marriage could be no marriage at all, then the departmental authorities will have no justification to arrive at the conclusion which they have arrived at against the plaintiff.

13. But there exists a much more serious challenge to the very invocation of section 414(2) of the Bombay Police Manual by the Department. Mr. Mohite strenuously contended that section 414(2) of the Manual had no application to persons belonging to the faiths such as the Hindu faith, under whose personal law a second marriage was completely prohibited. Said section 414(2) may be set out here at this stage. It runs as follows :---

'No Government servant, who has a wife living, shall contract another marriage without first obtaining Government permission notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.'

In the first place, this section was brought in the Manual on 13-1-1955. Mr. Mohite tried to contend before me that at that time Hindus were allowed to marry as many wives as they could like and could afford. He contended that subsequently the Hindu Marriage Act came into force, under which there was complete embargo upon a second marriage by a Hindu during the subsistence of his first marriage. His contention was that when a Hindu Government Servant wanted to marry a second wife, it was incumbent upon him to take permission from the Government for doing so. But after the second marriage was completely prohibited by law, no question of taking permission cold arise and hence said sub-section (2) of section 414 could have no application cases where Hindus had purported to enter into matrimony for the second time after the advent of the Hindu Marriage Act.

Mr. Mohite's argument would not have been devoid of force but for the fact that on 13-1-1955 when said section 414(2) of the Act came into force in the State of Bombay, there did exist a law prohibiting bigamy.

The argument could not, therefore, be accepted in the manner in which it was advanced. But argument is still valid from a different stand-point. Point is that sub-section (2) of said section 414 of the Manual cannot be said to be envisaging Government employees following the Hindu faith at all. This is clear from the fact that what is contemplated by said sub-section is the bar upon a second marriage by a Government employee even when his personal law allows him such a second marriage. The non-obstante clause employed by said sub-section (2) must be that even though a second marriage by a person would not otherwise be prohibited by his personal law, still if he was to continue to the Government employment, he could not marry a second wife unless he had taken permission from the Government to do so. In what circumstances such a permission would be granted to such employee is not mentioned in the said section. I repeatedly called upon Mr. Page to explain as to what were the guidelines laid down for granting such a permission. Mr. Page could not point his finger on any such guidelines. It is a matter of grave consideration as to whether the absence of any such guidelines would not have a serious impact upon the very validity of such an order. But that is different and distinct question. Even assuming that this power to grant permission in certain cases and to refuse permission in some other cases without laying guidelines for such differentiation is a valid provision, still the point is that the Government is not expected under sub-section (2) to grant permission to any Government employee to marry a second wife when the law prohibits such a second marriage and renders it blatantly illegal. Mr. Page strenuously argued before me that permission could be given only when the personal law did not prohibit a second marriage and that the Government could not given permission when there was any such prohibition. He argued that merely because this was so, it cannot be said that said sub-section (2) has no application to persons following faiths such as the Hindu faith when their second marriage was taboo under the present law. I do not see how he can pursue this line reasoning. Said sub-section (2) no doubt gives power to the Government to refuse permission to any Government employee to have second wife event hough his personal law allows him to have such second wife. But this does not mean that such sub-section (2) authorises the Government to give permission to a person to marry a second wife even though his personal law prohibits him from doing so. The power given to the Government under sub-section (2) to give permission to the employee concerned for second marriage must, therefore, of necessity, be confined to cases where the employee concerned has a right under his personal law to take a second wife and this position can be brought about only by interpreting the section to mean that it is restricted only to those persons whose personal law permits more spouses than one for male. In other words, it can be said that it does not apply to Hindus at all. The non-obstante clause is clear pointer to this interpretation.

14. It was, however, argued by Mr. Page that it would be an anomalous thing for the rules to provide that only a Muslim employee required permission to marry a second wife when such a thing was fully allowed by his personal law, whereas a Hindu who was prohibited from taking a second wife in law did not require such permission.

A simple answer to this plea is that such a permission is not provided for because it cannot be given by the Government at all. If a Hindu happens to marry a second wife against the provisions of the Hindu Marriage Act, he will be committing an offence and if he is convicted of such an offence, that will itself a ground for the employee to be removed from service. It was common ground before me that every Government employee, if he is convicted of an offence under the Indian Penal Code or similar statute can be removed by the Government from the service. To my mind, this is the position brought about apart from said sub-clause (2) as against those who are convicted of any offence such as the offence of bigamy. No special provision of punishment had to be and has been provided in the Manual for removal of such employees. There is, for instance, no direct provision for removal of an employee convicted of burglary. But the scheme of the Manual, it is common ground, provide in ample measure for such delinquencies. The specific provision is necessary only against those who can indulge in bigamy with impunity as per their personal law and it is for those alone that the condition of previous permission from the Government has been imposed by said sub-section (2).

15. It may be mentioned here that when I say said section 414(2) has no application to Hindus, I do not mean that the position is restricted to Hindus alone. All those communities amongst whom marrying a second wife is a taboo are the persons who must be held not to be governed by said sub-section (2). In fact said sub-section (2) is one which puts embargo upon the second marriage. It does not purport to give leave for special marriage when the embargo otherwise exists by virtue of the personal law of the employee in question.

16. The next point urged by Mr. Mohite was that even assuming that said sub-section (2) applied to the Hindu employees governed by the Hindu Marriage Act and even assuming that what the plaintiff had done was the act of contracting a second marriage within the contemplation of said sub-section (2), still the authorities concerned were not justified in imposing maximum punishment allowed by the Service Rules against the delinquent employee. Contention in this connection was two-fold : Firstly it was contended that their exist no rules which can guide the authorities concerned even in a broad manner as to what kind of punishment should be inflicted upon a person who has been held to be guilty of an offence of bigamy by the Department itself. Mr. Mohite pointed out that there may be an employee who is in the good books of the relevant officer and hence in spite of has offence of second marriage, he might be let out by the officer concerned with a mild penalty of reprimand or perhaps stoppage of an increment or so, whereas an employee who is regarded by some officer who matter, to be a thorn in his side, might be visited upon with the maximum penalty. No guide-lines are laid down in any part of the Manual to decide whether a particular act of delinquency or default is a major default or a minor default. No doubt guide-lines exist for the purpose of pointing out as to how the punishment should be started in a milder form and as to how it should be inflicted gradually in a most stricter form if an employee goes on committing defaults, one after the other. In fact instructions in this behalf have been issued by the Government of Maharashtra; they are termed as 'Instructions regarding the holding of Departmental Enquiries against Police Officers of and below the rank of Inspectors in the Police Force in the State of Maharashtra'. A copy of these instructions was produced before me and those instructions do show that for minor offences major punishment should not be inflicted in the first instance and that the punishment should be graduated. This is how it ought to be. But this is not a sufficient guideline for determining whether a particular offence or delinquency committed by the employee concerned is a major offence or a minor offence. Neither the instructions nor the Bombay Police (Punishment and Appeals) Rules, 1956 produced before me provides that even for a major offence or default only minor punishment should be awarded in the first instance. This could not be so from the very nature of things. A person convicted of murder shall have to be removed from service in normal circumstances. Normally, the Department will not be able to hold that since this was first instance when the employee has committed murder he should be let out with a minor penalty of a reprimand. On the other hand, in the case of a very minor default of irregularity in attendance, it will be a penalty wholly out of proportion to pass an order of his removal.

But these guide-lines serve the purpose only partially. The main question as to what is the major offence or default and what is the minor offence, or default has got to be decided on some guide-lines. None exists. At least, none was pointed out to me.

In any event, there are no guide-lines either in the rules or in the instructions as to whether the offence of contravention of sub-section (2) of section 414 is a major offence or a minor offence. In spite of this position, the penalty inflicted upon the plaintiff is a penalty for a major offence, namely the penalty of removal. The imposition of penalty, it is argued, is bad on this account only.

17. The second line of attack is about the exercise of the power by the authorities concerned in such a manner as to start with the maximum penalty in such a case. Argument was that such arbitrary exercise of power is ultra vires the rules in the sense that this is not contemplated by the rules. Mr. Mohite invited my attention to the instructions, referred to above, which do state that for the very first offence major penalty should not be imposed. In support of this contention, Mr. Mohite relied upon the judgment of the Gujarat High Court reported in 1979 (3) S LR 130. The learned Single Judge of the Gujarat High Court held in that case that non-observance of the instructions contained in the Manual as regards the gradual imposition of penalty vitiated the exercise of the power to impose penalty. In that case, the Police Constable concerned had remained absent in the morning parade and on some other occasion he was found absent at the roll call. On this account departmental proceedings were held against him nearly after a year and a half and ultimately an order of his removal was passed against him. When all his efforts to correct the order (by Appeal and Revision) failed, he filed the suit for declaration that the said order was illegal. That contention was accepted by the Gujarat High Court on the ground, inter alia, that the instructions contained in the Bombay Police Manual for imposition of gradual penalties and not extreme penalty at the first stroke, had to be observed by the Department and non-observance of those instructions vitiated the exercise of power of imposition of punishment.

Relying upon this judgment, Mr. Mohite contended that imposition of the maximum penalty for the offence in question was infraction of the said instructions. In this connection, he particularly pointed out that the offence in this case was not an offence of bigamy; the plaintiff was not being punished for committing bigamy. If said sub-section is applied equally to Hindu & Muslims, then the Muslims will not be deemed to have been punished for committing bigamy, because for a Muslim, bigamy is not an offence at all. A Muslim employee, therefore, if punished under sub-section (2) would be deemed to have been punished for not taking permission of the authorities for contracting a second marriage. Ex hypothes, therefore, if a Hindu employee was punished under said sub-section (2), he would be deemed to have been punished not because of marrying a second wife but because he had failed to take permission of the Government before entering into such second marriage. Offence therefore, is, it is argued, not taking permission of the Government. The offence is not the offence of bigamy. If this is the position, then there is no reason to hold that this is a major offence. If the Government cold, in given circumstances, give permission to the employee to marry a second wife before the marriage, it is conceivable that the Government would be able to condone the second marriage inappropriate circumstances and no case in which the Government has the power to condone the offence can be said to be a case of major offence at all. The penalty for such an offence must be a graduated penalty, not the extreme penalty right from first instance.

18. There is quite some force in Mr. Mohite's argument. But Mr. Page, the learned Asst. Government Pleader, has some valid argument to advance against this contention. He pointed out that sub-section (1) of section 414 of the Manual totally disqualifies an employee even from entering into the Government service if he had two wives simultaneously. If an employee was disqualified from entering into Government service on this account, the penalty of removing him from service directly when he married a second wife with prior Government permission could not be said to be an arbitrary act, contends Mr. Page.

To my mind, it is unnecessary to decide this question in this appeal, because the appeal is capable of being disposed of on the first two points mentioned above.

19. It was also argued by Mr. Mohite that the District Superintendent of Police has given no reason for awarding the maximum punishment upon the plaintiff, which fact shows complete non-application of mind on his part to the question of awarding punishment. On this point, Mr. Mohite may be right. But I do not wish to decide this question in this appeal for reasons already mention above.

But though I do not want to decide the question as to whether the order of imposition of maximum penalty would be bad on account of such non-application of mind or not, I cannot part with this judgment without expressing my complete dis-approval of the manner in which the authorities have found it fit to remain stubborn on their stand relating to dismissal of the plaintiff. Time and again the hearing of the appeal was adjourned in order that the officers concerned might consider as to whether they should not have a second look at the aspect of the matter relating to re-instatement of the plaintiff. It was pointed out that if there was to be a re-instatement, the consequent order passed by the trial Court enabling the plaintiff-to get all the back wages was inescapable. Moreover, I repeatedly informed the Government, through their learned Counsel, that at least in the present circumstances there existed no ground whatsoever for imposition of the maximum penalty. It was not as if that any complaint was being made by the first wife. In fact both the wives, if they could be so-called, were living together in the same manner in which normal household exist and conducts itself in this country. Moreover, it was not seriously disputed that by the time the suit has been filed, the so-called second wife had left even the plaintiff and hence if the Government has any grievance against the plaintiff, that grievance has stood removed. However, repeatedly the Government informed the Court that they were in no mind to have a second look at their order, an attitude not every remote from the characteristic called impervious stubbornness. The incapacity and reluctance to look at the elementary sense of justice and fairness appeared to be the hall-mark of the officers concerned in this case. No words are enough for the purpose of showing the Court's disapproval to such an attitude.

20. The appeal is, therefore, allowed. The decree passed by the lower Appellate Court is hereby set aside and the decree passed by the trial Court is restored, with costs throughout.

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