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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2021
PRESENT
THE HON’BLE MR. JUSTICE B. VEERAPPA
AND
THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.38953/2016 (S-CAT)
BETWEEN:
UNION OF INDIA BY SECRETARY, DEPARTMENT OF POSTS, DAK BHAVAN, NEW DELHI-110 001.
THE CHIEF POST MASTER GENERAL KARNATAKA CIRCLE, BENGALURU-560 001.
THE SUPERINTENDENT RMS ‘Q’ DIVISION, BENGALURU-560 026. ...PETITIONERS (BY SRI B. PRAMOD, CGC)
AND:
D. RAMACHANDRA S/O DASAPPA, AGED ABOUT 54 YEARS,
2 EX SORTING ASSISTANT, 11TH WARD, III SUB CROSS, BUS LINGESHWARA ROAD, MADAN NILAYA, APMC ROAD, ARSIKERE HASSAN DISTRICT-573 103. …RESPONDENT
(RESPONDENT SERVED BUT UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A ORDER PASSED BY CENTRAL ADMINISTRATIVE TRIBUNAL, BANGALORE BENCH, BANGALORE IN ORIGINAL APPLICATION NO.1481/2014 DATED 23.02.2016.
THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, B. VEERAPPA, J., MADE THE FOLLOWING:
ORDER
The Union has filed the present writ petition against the order dated 23.2.2016 made in OA No.1481/2014 by the Central Administrative Tribunal, Bengaluru Bench, Bengaluru (for short `Tribunal’)) directing the present petitioners to reinstate the respondent/applicant into service, if he gives an undertaking to the effect that 50% of his total salary, after income tax is taken out of it, will be paid directly to the first wife and her children and he will also remit back the DCRG obtained by him within the two
3 years and the installments and the quantum of it will leave it to the good sense and discretion of the present petitioners and indirectly set aside the order dated 22.10.2014 passed by the Chief Postmaster General, Karnataka Circle, Bangalore compulsorily retiring the applicant from service with immediate effect.
For the sake of convenience, the parties are referred to as per their ranking in the original application before the Tribunal.
The applicant was working as Sorting Assistant in the Postal Department. During the employment, on 19.8.2008, the department initiated proceedings against the applicant. The applicant filed objections. An Enquiry Officer was appointed. The Enquiry Officer after considering the objections submitted his report dated 19.8.2008 holding that Article-I of the charge was proved and Article –II of the charge was partially proved. A copy of the enquiry report was furnished to the applicant on 2.9.2008. The applicant made a representation dated 15.8.97 to the Disciplinary
4 Authority. On 27.11.2008, the Disciplinary Authority dropped the proceedings against the applicant. The Revisional Authority issued a show cause notice dated 30.6.2010 stating that the Authority intends to revise the order passed by the Disciplinary Authority and imposed penalty of dismissal from service. Aggrieved by the said order, the applicant filed OA No.448/2010 before the Tribunal. The Tribunal quashed the order of dismissal passed by the present petitioners by the order dated 19.7.2012. Aggrieved by the said order, the present petitioners filed WP No.41533/2012. This Court by the order dated 19.12.2013 disposed of the writ petitions and directed the present petitioners to provide an opportunity to the respondent – applicant to file explanation/reply within eight weeks from the order and after considering the objections filed by the respondent-applicant and after hearing him, appropriate orders shall be passed by the Revisional Authority in accordance with law.
5 4. After remand, on 19.3.2014, respondent – applicant submitted his representation and requested for personal hearing. Accordingly, personal hearing was given on 21.3.2014 as per his request along with his defence assistant. After considering all the material including the representation, the Revisional Authority by the order dated 22.10.2014 imposed the penalty of compulsory retirement. The respondent – applicant was compulsorily retired from service. Aggrieved by the said order, respondent – applicant filed the present OA No.1481/2014 before the Tribunal. The Tribunal by the order dated 23.2.2016 disposed of the original application and directed the present petitioners to reinstate the respondent – applicant into service if he gives an undertaking to the effect that 50% of his total salary, after income tax is taken out of it, will be paid directly to the first wife and her children and he will also remit back the DCRG obtained by him within the next two years. The instalments and quantum of it will be left to the good sense and discretion of the respondents and other observations. Hence, the present writ petition is filed.
This Court while issuing Rule, an interim order of stay has been granted against the implementation of the impugned order passed by the Tribunal and the said order is existing as on today.
The respondent – applicant has been served and is unrepresented. When the matter came up before this court, this court requested Sri A R Holla, learned counsel to take notice for the respondent on 28.1.2021. When the matter cameup before Court, Sri A R Holla, learned counsel appeared before Court and submitted that though he made all efforts, the respondent – applicant is not answering or contacting him. Therefore, he is unable to appear for the respondent. Accordingly, the matter is posted today. Even today, respondent remained unrepresented.
We have heard Sri Pramod, learned Central Government Counsel for the petitioners.
Learned counsel for the petitioners contended that the impugned order passed by the Tribunal directing
7 the petitioners to reinstate the respondent and other directions issued are erroneous and contrary to the material on record and cannot be sustained. He further contended that the Tribunal failed to notice that in view of Rule 21(1)&(2) of the CCS (Conduct) Rules, 1965, no government servant shall enter into, or contract, a marriage with a person having a spouse living and no government servant having a spouse living, shall enter into, or contract, a marriage with any person. In the present case, the respondent not only entered into a marriage with another woman when having a spouse living, but also produced falsified documents and utilized the same to change his service records. The Tribunal has lost sight of the fact that the respondent had conducted himself in a manner which is unbecoming of a government servant and had falsified documents and utilized the same to change his service records. Therefore, the Tribunal was not justified in setting aside the order of compulsory retirement ignoring violation of Rules 22(1) and (2) of CCS (Conduct) Rules, 1965. He further contended that the government servant must not
8 have second spouse except in the case of death of earlier spouse or there is legal separation. In the present case, when the first wife of the respondent is alive and there was no legal separation, the respondent produced fabricated death certificate of the first wife. The Revisional Authority passed the impugned order of compulsory retirement in accordance with law. Therefore, he sought to allow the writ petition.
In view of the above contentions raised by the learned counsel for the petitioner, the point that arises for consideration in the present writ petition is:
“Whether the Tribunal is justified in passing the impugned order directing the petitioner to re-instate the respondent-applicant into service subject to undertaking that he gives 50% of his total salary and other directions in the facts and circumstances of the present case?”
Having heard the learned counsel for the petitioners, it is not in dispute that the respondent was working as Sorting Assistant in the Postal Department of the
9 petitioners. While he was in service, the department, after coming to know that respondent has contracted second marriage while his first wife was alive, initiated the disciplinary proceedings and framed two charges as under: (i) Entering into marriage with Smt.S K Mainavathi on 11.09.1997 though his first wife Smt.R Lalitha was alive in contravention of Rule 21(2) of CCS (Conduct Rules) 1964;
(ii) Producing the death certificate dated 30.11.1998 of his wife Smt.R Lalitha obtained by furnishing false information from the Chief Registrar of Births and Deaths – Sakharauanapatna & utilized the said death certificate to substantiate his second marriage with Smt.S K Mainavathi and also to nominate her for DCRG.?
It is also not in dispute that after holding enquiry, the Enquiry Officer held charge No.1 proved fully and charge No.2 partly proved and after following the procedure as contemplated under Rules, the petitioner dropped the proceedings against the respondent. It is also not in dispute that the Revisional Authority by the order
10 dated 30.6.2010 directed the respondent to submit his representation as to why the penalty of dismissal from service should not be imposed on him. After considering the objections, the Revisional Authority dismissed the respondent from service on 29.9.2010. It culminated in the order passed by the Tribunal on 19.7.2012 allowing OS No.448/2010 filed by the respondent setting aside the order of dismissal. Aggrieved by the said order of the Tribunal, the petitioner filed WP No.41533/2012 before this Court. This Court by the order dated 19.12.2013 disposed of the writ petition and observed as under: “4. In order to avoid further delay, we are of the opinion that interest of justice would be met with if the order dated 29.9.2010 passed by the Revisional Authority itself is treated as shown cause notice issued to the respondent. Since the said order contains the reasons recorded by the Revisional Authority, the respondent will be in a position to reply effectively to such show cause notice. By the said process, no prejudice will be caused to the respondent also.
Accordingly, we direct that the order dated 29.9.2010 passed by the Revisional Authority shall be treated as show cause notice issued by the Revisional Authority to the respondent. The respondent shall be submit his explanation/ reply within eight weeks from this day.
The respondent shall also be heard in person by Revisional Authority within four weeks thereafter. After considering the statement of objections to be filed by the respondent and after hearing him, appropriate orders shall be passed by the Revisional Authority in accordance with law.
In all other respects, the order of the CAT is left undisturbed. We also make it clear that any observations made by the CAT on merits shall not influence the Revisional Authority while deciding the matter.”
After remand, the Revisional Authority reconsidered the case of the respondent providing an opportunity to file objections or personal hearing, the Revisional Authority by the order dated 22.10.2014
12 considering the entire material on record recorded a finding as under: “Every Government Servant is expected to maintain proper decorum and dignity in his family life and cannot ensnarl the Department into legal disputes for his personal gain. I fully agree with the findings of the Inquiry Officer and in totality, the charges levelled against the charged official as enshrined in the memo of charges are quite grave in nature warranting deterrent punishment. Summing up,I am of the view that by the act of his own misconduct the charged official has rendered himself disqualified for Government Service and his further retention is against the statutory rules framed by Government of India. However, taking into consideration his lengthy service in the Department, I am taking a lenient view to meet the ends of justice. IN view of the foregoing, as per the directions of Hon’ble High Court of Karnataka issued in Writ Petition No.41533/2012 dated 19.12.13 and also by exercising the powers conferred under Rule 29 of CCS (CCA) Rules 1965, I pass the following order.
13 ORDER I M S Ramanujan, Chief Postmaster General, Karnataka Circle, Bangalore-560001 hereby order that Sri D Ramachandra, Sorting Assistant, RMS `Q’ Division, be “Compulsorily Retired from Service” with immediate effect.” Accordingly, the order of compulsory retirement came to be passed.
The Tribunal while considering the original application erred in recording the finding that now, we can look at it through the narrow prism of technical jurisprudence and say that applicant had committed an infraction and must be punished. But when we view through the larger perspective, the infraction alleged against the applicant may not be so serious as in the old colonial days as to invite the extreme punishment of compulsory retirement. It will deprive not only the applicant, but also the first wife and her two children. Therefore, we think that in the moral perspective available today even though the rule remains unchanged all through
14 these 100 years that no man must have more than one wife if he is a government servant is still in statute books.
The Tribunal further erred in recording a finding that the very fact that he had suppressed that the first wife is still living aggravated the situation, but the fact is that the personal life of a government servant actually has nothing to do with government service unless substantial moral turpitude can be attributed to infractions. Having one relationship or living with another woman need not be considered as a great infraction at least in this millennium, the Victorian morality which have promoted the earlier rule may no longer be relevant in our society. Living together of man and woman is not looked down upon and the society has also accepted it as reasonable and legitimate. The Tribunal expressed its view against the Rules and expressed personal view, which is against the Rules and is impermissible.
15 15. The observation made by the Tribunal is totally contrary to the Rules 21 of the CCS (Conduct) Rules, 1965, which reads thus: 21. 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. (3) A Government servant who has married or marries a person other than of Indian nationality shall forthwith intimate the fact to the Government.
By careful perusal of the Rules, it is clear that no Government servant shall enter into, or contract, a marriage with a person having a spouse living and shall enter into, or contract, a marriage with any person and the
16 Central Government may permit a Government servant to enter into contract, any such marriage as is referred to in clause (1) or clause (2), if it is satisfied that such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage and there are other grounds for so doing. Admittedly, in the present case, the respondent entered into marriage with Smt.S K Mainavathi on 11.9.1997, though his first wife, Smt.R Lalitha was alive in contravention of Rule 21(2) of CCS (Conduct Rules), 1964 stated supra.
It is also not in dispute that he has produced the death certificate dated 30.11.1998 of his wife Smt.R Lalitha obtained by furnishing false information from the Chief Registrar of Births and Deaths, Sakharauanapatna and utilized the said death certificate to substantiate his second marriage, which is clearly unbecoming of a government servant. The Tribunal has not considered the said material on record and proceeded to pass the order and a Member expressed his opinion. Admittedly, the Rules relied upon by
17 the present petitioners is still existing in the book and not modified. Therefore, as long as the Rule is existing, it is binding on the government as well as the Tribunal. At the most, the Tribunal or Court can interpret the Rules. The Tribunal cannot go against the Rules and say that living together of man and woman is not looked down upon and the society has also accepted it as reasonable and legitimate when the law did not permit the same. The observations made by the Tribunal is totally against the Rules and admittedly, the Rules have not been challenged by the respondent. It is an undisputed fact that the Tribunal has passed the impugned order without whispering or assigning any reason and indirectly set aside the order of compulsory retirement passed by the present petitioners. Taking into consideration the observations made by this Court in WP No.41533/2012 and the length of service rendered by the respondent, the Tribunal ought not to have interfered with the order passed by the Appellate Authority. Therefore, the impugned order passed by the Tribunal cannot be sustained.
For the reasons stated above, the point raised in the present writ petition has to be answered in the affirmative holding that the petitioners – Union has made out a case to interfere with the impugned order passed by the Tribunal and the same cannot be sustained. For the reasons stated above, we pass the following:- ORDER (i) The writ petition is allowed. (ii) The impugned order dated 23.2.2016 made in OA No.1481/2014 passed by the Central Administrative Tribunal, Bengaluru Bench, Bengaluru is hereby quashed. (iii) The order passed by the Revisional Authority i.e. the Chief Postmaster General, Karnataka Circle, Bangalore-1 vide Annexure-A18 is hereby restored and the order of compulsory retirement is modified holding that the respondent –
19 applicant is entitled to all consequential benefits in accordance with law.
Sd/-
JUDGE
Sd/- JUDGE
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