# Pawan Kumar Misra v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 535
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-02
- **Case number:** Special Appeal No. 570 of 2012
- **Bench:** Devi Prasad Singh, Ashwani Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-misra-v-state-of-u-p-ors-42790
- **Pages:** 7

## Headnote

U.P. Government Servant(Conducts)Rules,
1956-Section-29-Removal from service-on
account of second marriage during life time
of first wife-without divorce-amounts to
misconduct-dismissal
held
propersbsequent withdrawl of complaint by first
wife-meaningless.
Held: Para-17
In the case in hand, the appellant-petitioner
had committed an offence of bigamy after
enjoying 11 years of matrimonial life. Once
the 1956 Rules provides that second
marriage by a government servant during
the lifetime of first wife is an offence, and it
amounts to misconduct, then it is not open
for the court to take a different view than
what
has
been
considered
by
the
disciplinary authority.

Case Law discussed:
2006 (2) SCC 670; AIR 2007 SC 2742; AIR
2007 SC 2625; AIR 2008 SC 1797; 2006(2)
GLT 569.

## Text

2 All] Pawan Kumar Misra Vs. State of U.P. & Ors.
535
considered view that the application moved
by the petitioner for release of the vehicle
seized
by
Mining
Officer
was
not
maintainable before the learned Chief
Judicial Magistrate and learned Chief
Judicial Magistrate has rightly rejected it by
the impugned order. There appears no
illegality or irregularity in the order
impugned requiring interference by this
Court. The revision being devoid of merit is
liable to be dismissed and is dismissed
accordingly. However, it will be open to the
revisionist to move application for release of
his vehicle before the appropriate authority
under Section 207 (2) of the Act and the said
authority will pass appropriate orders in
accordance with law and keeping in view the
law laid down by Hon'ble Apex Court in
Sunderbhai Ambalal Desai Vs. State of
Gujrat; 2003 (46) ACC 223 (SC).
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2014

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ASHWANI KUMAR SINGH, J.

Special Appeal No. 570 of 2012

Pawan Kumar Misra... Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.E. Chiramber, Sri S.P. Misra

Counsel for the Respondents:
C.S.C.

U.P. Government Servant(Conducts)Rules,
1956-Section-29-Removal from service-on
account of second marriage during life time
of first wife-without divorce-amounts to
misconduct-dismissal
held
propersbsequent withdrawl of complaint by first
wife-meaningless.
Held: Para-17
In the case in hand, the appellant-petitioner
had committed an offence of bigamy after
enjoying 11 years of matrimonial life. Once
the 1956 Rules provides that second
marriage by a government servant during
the lifetime of first wife is an offence, and it
amounts to misconduct, then it is not open
for the court to take a different view than
what
has
been
considered
by
the
disciplinary authority.

Case Law discussed:
2006 (2) SCC 670; AIR 2007 SC 2742; AIR
2007 SC 2625; AIR 2008 SC 1797; 2006(2)
GLT 569.

(Delivered by Hon'ble Devi Prasad Singh ,J.)

1. Heard learned counsel for the
appellant-petitioner, Sri S.P. Mishra and
learned Standing Counsel Sri Pushkar
Baghel, appearing for respondents.

2. This is an appeal under Chapter
VIII Rule 5 of the High Court Rules, 1952
against
the
impugned
order
dated
31.7.2012 passed by Hon'ble Single Judge
in Writ Petition No.1343 (S/S) of 2004.

3. The appellant-petitioner, a police
constable, has been punished pursuant to
disciplinary proceedings, being remarried
to
another
lady
without
seeking
permission of the state government in
pursuance to U.P. Government Servants
Conduct Rules, 1956 (in short '1956
Rules'). The factum of remarriage by the
appellant-petitioner seems to be not
disputed. The appellant-petitioner also
does not dispute that he has remarried
himself in spite of the fact that his first
wife survives.

4. The appellant-petitioner was
married to one Smt. Sunita, daughter of
536 INDIAN LAW REPORTS ALLAHABAD SERIES
Shri Raghuwar Tiwari according to Hindu
rites and rituals in the year 1991. Since
wedlock of his first wife, he could not get
child for almost 11 years, hence he again
married to another lady. Feeling aggrieved,
first wife submitted a complaint to D.I.G.,
Lucknow on 11.7.2001 with the allegation
that the appellant-petitioner has solemnized
second marriage with another lady, namely
Smt. Deep Mala, without divorcing her and
also threatened to kill her and her parents. On
account of ill-treatment due to remarriage by
the appellant-petitioner, the first wife has
gone back to her parental house (maika). The
departmental enquiry was initiated, and
finding has been recorded by the Enquiry
Officer that the appellant-petitioner has
remarried to another lady during lifetime of
his first wife. The disciplinary authority has
awarded major penalty of dismissal from
service. Appeal and revision preferred by the
appellant-petitioner were dismissed. Feeling
aggrieved, he preferred a Writ Petition
No.1343 S/S of 2004 before this court, which
has been dismissed by Hon'ble Single Judge
by the impugned order, which is under
challenge in the instant appeal.

5. While assailing the impugned
order, learned counsel for the appellantpetitioner submits that under compelling
circumstances, he had remarried to
another lady, so that he can have child to
carry on social need. It is further
submitted
by
appellant-petitioner's
counsel that the marriage solemnized was
perfectly in accordance to the provisions
contained in sub-section (ii)(b) of section
5 of Hindu Marriage Act, 1955. Learned
counsel for the appellant-petitioner further
submits that in any case the punishment
awarded to the appellant-petitioner is
disproportionate to the misconduct. He relied
upon an unreported judgment of this court
dated 22.3.2010 passed in Civil Misc. Writ
Petition No.25871 of 2009 'Pancham Giri vs.
State of U.P. and others' by Hon'ble Single
Judge. In this case, Hon'gle Single Judge had
remanded the matter to the authorities,
relying upon the judgment in the case of
Bhagat Ram vs. State of Himachal Pradesh
reported in 1983 (2) SCC 442, to take a fresh
decision with the finding that the dismissal
from service is disproportionate to his
misconduct.

6. Learned counsel for the appellantpetitioner further submits that some of the
reasons recorded in the impugned order
are not sustainable and observation has
been made without going through the
records. Such argument does not seem to
be available to the appellant-petitioner for
the reason that the factum of remarriage
has
not
been
disputed.
Once,
the
misconduct is admitted, then there is no
option with the authorities except to
award punishment in accordance to law.

7. On the other hand, learned counsel
for the respondent has invited our attention
to the judgment reported in (2006) 6 SCC
Union of India and another vs. K.G. Soni,
wherein Hon'ble Supreme Court held that
punishment awarded to the delinquent
employee on account of second marriage
call for no interference by the court.
Interference of the court under Article 226
is limited to the deficiency in the decisionmaking process and not the decision.

8. Rule 29 of the U.P. Government
Servants Conduct Rules, 1956, which
deals with service conditions and is
relevant for adjudication of the present
controversy, is reproduced:-
2 All] Pawan Kumar Misra Vs. State of U.P. & Ors.
537

"Bigamous
marriages-
(1)
No
government servant who has a wife living
shall contract another marriage without
first obtaining the permission of the
government, notwithstanding that such
subsequent marriage is permissible under
the personal law for the time being
applicable to him.

(2) No female government servant
shall marry any person who has a wife
living
without
first
obtaining
the
permission of the government."

9. A plain reading of Rule 29 reveals
that a government servant cannot marry
again without permission of the state
government. The legislature to their
wisdom
has
used
the
word
"notwithstanding" which means, even if
the marriage is permissible under personal
law for the time being applicable to a
government servant, such government
servant cannot be allowed to marry again
without
permission
of
the
state
government.

10. It is settled proposition of law
that when the language of the statute is
clear and unambiguous, court can not
make any addition or subtraction of words
vide 2006 (2) SCC 670, Vemareddy
Kumaraswami Reddy and another Vs.
State of Andhra Pradesh,

11. In AIR 2007 SC 2742, M.C.D.
Vs. Keemat Rai Gupta and AIR 2007 SC
2625, Mohan Vs. State of Maharashtra,
their Lordship of Hon'ble Supreme Court
ruled that Courts should not add or delete
the words in statute. Casus Omisus should
not be supplied when the language of the
statute is clear and unambiguous.

12. In AIR 2008 SC 1797,
Karnataka State Financial Corporation
Vs. N. Narasimahaiah and others, Hon'ble
Supreme Court held that while construing
a statute, it can not be extended to a
situation not contemplated thereby. Entire
statute must be first read as a whole, then
section by section, phrase by phrase and
word
by
word.
While
discharging
statutory obligation with regard to take
action against a person in a particular
manner, that should be done in the same
manner. Interpretation of statute should
not depend upon contingency but it
should be interpreted from its own word
and language used.

13. Accordingly, since rule 29 of
1956 Ruels does not give any liberty to a
government servant to enter into second
marriage without permission of the state
government, no interpretation other than
what is reflected from a plain reading of
the provisions contained therein may be
given.

14. We are of the view that the
appellant-petitioner cannot take assistance
of the provisions contained in Hindu
Marriage Act or alike personal law being
a government servant. The 1956 Rules
has got statutory force and also got
overriding effect over the provisions
contained in the statute dealing with
personal law.

15. Much reliance has been placed
by the learned counsel for the appellant-
538 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner
on
the
judgment
dated
28.6.2012 of the Gauhati High Court
passed in Writ Appeal No.320 of 2010
'Union of India and others vs. Shri
Ramashankar Gupta'. In the case of Shri
Ramashankar Gupta (supra), the Gauhati
High Court has considered the earlier
judgment in the case of Amal Kumar
Baruah vs. State of Assam and others
reported in 2006 (2) GLT 569, whereby
the complaint, submitted by the wife, has
been withdrawn by her and in the same
case the Division Bench of Guahati High
Court had affirmed the order of dismissal
from service on a proven charge of
bigamy. For convenience, para 26 of the
judgment in Union of India and others vs.
Shri Ramashankar Gupta (supra) is
reproduced:-

"26. As has already been noticed
above, bigamy is prohibited by Rule 21 of
the Central Civil Services (Conduct)
Rules, 1965. When bigamy is expressly
prohibited under the law (except the two
exceptions mentioned in the provision
which are not attracted and applicable in
the present case), it would not be correct
to say that punishment of dismissal from
service on a proven charge of bigamy
would be disproportionate on the ground
that under the criminal law bigamy is a
compoundable offence, more so when the
delinquent was a member of a disciplined
force like the Assam Rifles. Continuation
of such a person in force may have an
adverse affect on the overall image of the
force. It may affect the public perception
that a person guilty of bigamy can still
continue as a member of such force.
Moreover, it may have a cascading effect
on the overall morale and discipline of the
force. The further view taken by the
Single Bench that the second marriage has
nothing to do with either the official
position of the petitioner or the discharge
of official duties does not appear to us to
be
a
correct
appreciation
of
the
consequences
of
proven
charge
of
bigamy."

16. In the case of Pancham Giri vs.
State of U.P. and others (supra), Hon'ble
Single Judge while deciding the writ
petition has remanded the matter to the
authorities to take a fresh decision on
dismissal from service on account of the
fact that the delinquent employee was at
the verge of retirement. A lenient view
was taken by Hon'ble Single Judge
keeping the facts and circumstances of the
case, which does not seem to be
applicable to the present case.

17. In the case in hand, the
appellant-petitioner had committed an
offence of bigamy after enjoying 11 years
of matrimonial life. Once the 1956 Rules
provides that second marriage by a
government servant during the lifetime of
first wife is an offence, and it amounts to
misconduct, then it is not open for the
court to take a different view than what
has been considered by the disciplinary
authority.

18. In the case of Union of India and
another vs. K.G. Soni (supra), relied upon
by learned counsel for the appellantpetitioner, Hon'ble Supreme Court in
identical situation held that the High
Court ordinarily should not interfere in
such a matter by exercising power
conferred by Article 226; rather it has to
look into the deficiency in the decisionmaking process and not the decision. For
2 All] Pawan Kumar Misra Vs. State of U.P. & Ors.
539
convenience, relevant paras 3, 8, 13 and
14 of
the
aforesaid judgment
are
reproduced:-

"3. Background facts in a nutshell are
as follows:

Respondent was a Store Attendant in
the Bank Note Press, District Dewas (M.P).
A charge-sheet was issued against him on the
foundation that though he had got married
with one Parvathibai in the year 1973, while
filling up the attestation form on 16.3.1974,
he did not show her name as his wife. It was
further alleged that he got married for the
second time in October, 1974 with one
Ushabai. On the basis of this non-disclosure,
which, authorities considered to be a
misconduct, a disciplinary proceeding was
initiated. It is to be noted that the nondisclosure came to the notice of the
authorities
when
Parvathibai
made
a
complaint about the second marriage. The
enquiry was conducted under Central Civil
Services (Classification, Control and Appeal)
Rules, 1965 (in short the 'Rules'). The
Enquiry Officer recorded findings in favour
of
the
respondent.
The
Disciplinary
Authority differed with the findings of the
Inquiry Officer and came to hold that second
marriage had in fact been performed and
accordingly it issued show cause notice to
the respondent and eventually came to hold
that the respondent was guilty of misconduct
and imposed the punishment of removal by
order dated 2.4.1996.

8. The High Court was of the view that
ordinarily it would have remanded the matter
to Tribunal for fresh consideration on merits
but it was of the view that this is a fit case
where the matter should be remitted to the
Appellate Authority for reconsideration with
regard to the quantum of punishment. The
only basis for coming to the conclusion that
the complaint was made by the wife about
the alleged second marriage belatedly, and
this is not such a misconduct which warrants
compulsory
retirement
before
his
superannuation.

13. In Union of India and Anr. v. G.
Ganayutham (1997 [7] SCC 463), this
Court summed up the position relating to
proportionality in paragraphs 31 and 32,
which read as follows:

"The
current
position
of
proportionality in administrative law in
England and India can be summarized as
follows:

(1) To judge the validity of any
administrative order or statutory discretion,
normally the Wednesbury test is to be applied
to find out if the decision was illegal or
suffered from procedural improprieties or was
one which no sensible decision-maker could,
on the material before him and within the
framework of the law, have arrived at. The
court would consider whether relevant matters
had not been taken into or whether irrelevant
matters had been taken into account or
whether action was not bona fide. The court
would also consider whether the decision
absurd or perverse. The court would however
go into the correctness of the made by the
administrator amongst the various alternatives
open to. Nor could the court substitute its
decision to that of the administrator. This is
the Wednesbury (1948 1 KB 223) test.

(2) The court would not interfere
with the administrator's decision unless it
was illegal or suffered from procedural
540 INDIAN LAW REPORTS ALLAHABAD SERIES
impropriety or was irrational \026 in the
sense that it was in outrageous defiance of
logic or moral standards. The possibility
of other tests, including proportionality
being brought into English administrative
law in future is not ruled out. These are
the CCSU (1985 AC 374) principles.

(3)(a) As per Bugdaycay (1987 AC
514), Brind (1991 (1) AC 696) and Smith
(1996 (1) All ER 257) as long as the
Convention is not incorporated into
English law, the English courts merely
exercise a secondary judgment to find out
if the decision-maker could have, on the
material before him, arrived at the
primary judgment in the manner he has
done.

(3)(b)
If
the
Convention
is
incorporated in England making available
the principle of proportionality, then the
English
courts will
render
primary
judgment
on
the
validity
of
the
administrative action and find out if the
restriction is disproportionate or excessive
or is not based upon a fair balancing of
the fundamental freedom and the need for
the restriction thereupon.

(4)(a) The position in our country, in
administrative law, where no fundamental
freedoms as aforesaid are involved, is that
the courts/tribunals will only play a
secondary
role
while
the
primary
judgment as to reasonableness will remain
with the executive or administrative
authority. The secondary judgment of the
court is to be based on Wednesbury and
CCSU principles as stated by Lord
Greene and Lord Diplock respectively to
find if the executive or administrative
authority has reasonably arrived at his
decision as the primary authority.

(4)(b) Whether in the case of
administrative
or
executive
action
affecting
fundamental
freedoms,
the
courts in our country will apply the
principle of "proportionality" and assume
a primary role, is left open, to be decided
in an appropriate case where such action
is
alleged
to
offend
fundamental
freedoms. It will be then necessary to
decide whether the courts will have a
primary role only if the freedoms under
Articles 19, 21 etc. are involved and not
for Article 14."

14. The common thread running
through in all these decisions is that the
Court should not interfere with the
administrator's decision unless it was
illogical or suffers from procedural
impropriety or was shocking to the
conscience of the Court, in the sense that
it was in defiance of logic or moral
standards. In view of what has been stated
in the Wednesbury's case (supra) the
Court would not go into the correctness of
the choice made by the administrator open
to him and the Court should not substitute
its decision to that of the administrator.
The scope of judicial review is limited to
the deficiency in decision-making process
and not the decision."

19. Keeping the principle emerging
from Union of India and another vs. K.G.
Soni (supra), there appears to be no
reason to interfere with the order passed
by
Hon'ble
Single
Judge
and
the
disciplinary authority, as held by their
Lordships of Hon'ble Supreme Court that
2 All] Smt. Anara Devi Vs. Ayukt Khadya Evam Rasad & Ors.
541
the courts should not interfere with the
administrator's decision unless it was
illogical or suffers from procedural
impropriety or was shocking to the
conscience of the court. The department
moved ahead to charge the appellantpetitioner in pursuance of complaint
submitted by his own first wife and
factum of remarriage has not been denied
by the appellant-petitioner. Accordingly,
the appellant-petitioner has been punished
in pursuance to 1956 Rules (supra).

20. We have been informed that at
later stage the appellant-petitioner's wife
has withdrawn the complaint but it does
not seem to make out a case to dilute the
decision
taken
by
the
disciplinary
authority. The entire allegation against the
appellant-petitioner was raised by his own
wife being aggrieved with his second
marriage. Any withdrawal of complaint,
at later stage, shall not dilute the merit of
the case, since under Rule 29, the action
of the appellant-petitioner constitutes a
case of misconduct, which is also
punishable under Section 494 of I.P.C.

21. Once the wife brought into
notice of the authorities with regard to
second
marriage
of
the
appellantpetitioner, then at later stage, ordinarily
any
application
moved
by
the
complainant-wife does not seem to make
out a case for interference with the
decision of the disciplinary authority.

22. Any liberty given by the courts or
interference with such matters, may result
with ill consequence in due course of time or
may break the discipline in police force. It is
not a case where misconduct has been
committed by not an ordinary government
servant. Being a member of disciplined
police force, it is always expected that such
person shall be abide law and in case, a
member of the police or Armed forces is
permitted to break the law and abuse the
powers conferred by the statutes, it shall send
a wrong message to the society.

23. In view of above, we are not
inclined to interfere with impugned order
passed by Hon'ble Single Judge. The
appeal,
being
devoid
of
merit,
is
dismissed accordingly.

24. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2014

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Service Single No. 642 of 2008

Smt. Anara Devi... Petitioner
Versus
Ayukt Khadya Evam Rasad & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.P. Dubey

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Retirement
benefits-denied
on
ground-even
on
compassionate ground appointment beingadhoc in nature-can not be taken into
consideration-as regularization period less
than 10 years of qualifying service-pension
not
payable-held-misconceivedcompassionate appointment being regular