# Shahjahan Khan v. The State of U.P. and others

- **Citation:** (2002) 2 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-01-18
- **Case number:** Civil Misc. Writ Petition No. 44340 of 2000
- **Bench:** M. Katju, S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahjahan-khan-v-the-state-of-u-p-and-others-39821
- **Pages:** 4

## Headnote

Government Conduct Rules 1956 Rule
29-(i)
Dismissal
order-
a
Police
Constable- despite of having living wife
started leaving with another woman for
the last 7 months-Tribunal found second
marriage not proved-held- not amount to
misconduct
of
bigamy-
considering
modern time- change of value- old can
not import old ideas into modern time-
dismissal order quashed.

Held - Para 5,6 and 12

In our opinion merely because a man
lived with a woman it does not mean
that he is married to her. Unless the
evidence proves the second marriage it
cannot be inferred that merely because
the petitioner lived with Champa Devi for
seven months he was married to her. In
paragraph
13
of
its
judgment
the
'Tribunal has stated that though the
second marriage is not strictly proved by
the evidence yet it is an act unbecoming
of a Government servant. In our opinion
Rule 29 of the Government Conduct
Rules will only apply if there was a
second marriage i.e. bigamy. Since the
Tribunal itself has held that the second
marriage was not proved we fail to
2 All] Shahjahan Khan Vs. The State of U.P. and others
301
understood how the petitioner could
have been held guilty of bigamy. This
may be regarded immoral by society but
it is not illegal. We may mention there is
difference between law and morality as
the British jurist, Bentham and Austin
pointed out. Hence, merely because the
petitioner lived with a woman voluntarily
who was not his wife for seven months
this in our opinion does not amount to
the misconduct of bigamy, as there was
no marriage. In the modern times values
have changed, and we cannot import old
ideas into modern case.

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2002
300
leases. The contention has hardly any
merit. The Full Bench has merely struck
down Rule 9-A of the Rules which
provide for grant of a mining lease on
preferential basis and naturally this
decision can only effect the right of
renewal of only those persons who owe
their existence to a preferential right
under Rule 9-A of the Rules. The decision
cannot effect those who had got mining
leases without claiming any preferential
right and naturally the benefit of Rule 6-A
which provides for renewal of a mining
lease would still be available to such
category of persons. The question of
discrimination, therefore, does not arise.

10. It may also be mentioned here
that the impugned order passed by the
State Government on 7.12.2001 and the
order dated 14.12.2001 passed by the
District Officer have merely suspended
the operation of the order by which the
prayer of the petitioner for renewal of
lease had been granted. The last part of
the order passed by the State Government
shows that comments have been called far
from the District Officer to enable it to
take further decision in the matter. Being
merely an order of suspension, it is not at
all a fit case where this Court should
exercise discretion under Article 226 of
the Constitution at this stage.

11. For the reasons mentioned
above, we do not find any merit in the
writ petition, which is hereby dismissed
summarily at the admission stage.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18 JANUARY, 2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 44340 of 2000

Shahjahan Khan

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Rakesh Bahadur
Sri R.C. Deepak

Counsel for the Respondents:
S.C.

Government Conduct Rules 1956 Rule
29-(i)
Dismissal
order-
a
Police
Constable- despite of having living wife
started leaving with another woman for
the last 7 months-Tribunal found second
marriage not proved-held- not amount to
misconduct
of
bigamy-
considering
modern time- change of value- old can
not import old ideas into modern time-
dismissal order quashed.

Held - Para 5,6 and 12

In our opinion merely because a man
lived with a woman it does not mean
that he is married to her. Unless the
evidence proves the second marriage it
cannot be inferred that merely because
the petitioner lived with Champa Devi for
seven months he was married to her. In
paragraph
13
of
its
judgment
the
'Tribunal has stated that though the
second marriage is not strictly proved by
the evidence yet it is an act unbecoming
of a Government servant. In our opinion
Rule 29 of the Government Conduct
Rules will only apply if there was a
second marriage i.e. bigamy. Since the
Tribunal itself has held that the second
marriage was not proved we fail to
2 All] Shahjahan Khan Vs. The State of U.P. and others
301
understood how the petitioner could
have been held guilty of bigamy. This
may be regarded immoral by society but
it is not illegal. We may mention there is
difference between law and morality as
the British jurist, Bentham and Austin
pointed out. Hence, merely because the
petitioner lived with a woman voluntarily
who was not his wife for seven months
this in our opinion does not amount to
the misconduct of bigamy, as there was
no marriage. In the modern times values
have changed, and we cannot import old
ideas into modern case.

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
against the impugned order of the U.P.
Public Service Tribunal dated 31.7.2000
(Annexure-1 to the petition) and the order
dated 8.7.88 (Annexure-8 to the petition)
and the order dated 30.9.89 (Annexure-10
to the petition).

2. The petitioner was appointed as a
Constable in Uttar Pradesh on 14.2.77. It
is alleged that his work and conduct was
good and there was no adverse entry
against him. On 21.9.85 the petitioner was
suspended and a charge-sheet served on
him on 21.3.87 vide Annexure-2 to the
petition. The petitioner sent a reply (copy
of which is Annexure-3 to the petition).
Thereafter an enquiry was held and after
show cause notice he was dismissed on
1.7.88 vide Annexure-8 to the petition.
The petitioner filed an appeal, which was
dismissed on 30.8.89, vide Annexure-10
to the petition. The petitioner then went to
the Tribunal, which rejected his claim
petition. Hence this writ petition.

3. A large number of points have
been raised in this petition but in our
opinion the first argument itself is
sufficient to allow this petition and hence
we are not going into the other arguments
of learned counsel for the petitioner.

4. The charge against the petitioner
as seen from the chargesheet is that
although he had a married wife, he lived
with one Champa Devi for seven months
and this was in violation of Rule 29 to the
Government
Conduct
Rules
which
prohibits bigamy.

Rule 29 (1) of the U.P. Government
Servant Conduct Rules, 1956 states:

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

5. In our opinion merely because a
man lived with a woman it does not mean
that he is married to her. Unless the
evidence proves the second marriage it
cannot be inferred that merely because the
petitioner lived with Champa Devi for
seven months he was married to her. In
fact Champa Devi had filed a case under
section
376/366
I.P.C.
against
the
petitioner but the petitioner was acquitted
in that criminal case vide judgment dated
11.9.86 (Annexure-11 to the petition).

6. In paragraph 13 of its judgment
the Tribunal has stated that though the
second marriage is not strictly proved by
the evidence yet it is an act unbecoming
of a Government servant. In our opinion
Rule 29 of the Government Conduct
Rules will only apply if there was a
second marriage i.e. bigamy. Since the
Tribunal itself has held that the second
marriage was not proved we fail to
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
302
understood how the petitioner could have
been held guilty of bigamy.

7. The Tribunal has relied on the
decision of the Supreme Court in Ministry
of Finance v. S.B. Ramesh 1998(3) SCC
227 we have carefully perused the
aforesaid decision and in our opinion the
same is distinguishable.

8. In paragraph 8 of the aforesaid
decision the Supreme Court has quoted
the
following
observations
of
the
Tribunal:-

"Though it would be ideal if sexual
relationship is confined to legal wedlock,
there is no law in our country which
makes sexual relationship of two adult
individuals of different sex, unlawful
unless the relationship is adulterous or
promiscuous. If a man and a woman are
residing under the same roof and if there
is no law prohibiting such a residence,
what transpires between them is not a
concern of their employer".

9. The Supreme Court in paragraph
9 of its judgment has merely said that it
disapproves the above observation of the
Tribunal. However, no reasoning has been
given in the aforesaid decision of the
Supreme Court as to why it disapproved
the above observations of the Tribunal. It
is a settled principle that a decision is an
authority for the principle of law it has
laid down vide AIR 1975 S.C. 1087, AIR
1990 S.C.781, AIR 1983 S.C. 1246(61),
1996 (6) S.C.C. 44 and AIR 1985 S.C.
218. Hence, the aforesaid decision is
clearly distinguishable:

10. It may be mentioned that the
misconducts for which a Government
servant can be punished are stated in the
U.P.
Government
Servants,
Conduct
Rules. In our opinion unless an act is
regarded as a misconduct under the
relevant service rules no punishment can
be given for it.

11. In Pravina Solanki v. State of
U.P. (2001 (2) ESC 719) this Court held
that unless an employee does some act
which interferes with his/her official
function then ordinarily whatever he/she
does in his/her private life cannot be
regarded as misconduct.

12. This Court in Payal Sharma v.
Nari Niketan AIR 2001 Allahabad 254
has held that a man and woman can live
together if they wish without marrying.
This may be regarded immoral by society
but it is not illegal. We may mention there
is difference between law and morality as
the British jurist Bentham and Austin
pointed out. Hence, merely because the
petitioner lived with a woman voluntarily
who was not his wife for seven months
this in our opinion does not amount to the
misconduct of bigamy, as there was no
marriage. In the modern times values
have changed and we cannot import old
ideas into modern times.

13. For the reasons given above this
writ petition is allowed.

14. The impugned order of the
Tribunal dated 31.7.2000 as well as the
order dated 8.7.88 and 30.9.89 are
quashed. The petitioner will be reinstated
within a month from the date of
production of a certified copy of this
order before the authority concerned and
shall be given back salary from the date of
suspension till the date of reinstatement
within two months with 12% interest.
---------
2 All] Faujdar Vs. Deputy Director of Consolidation, Azamgarh and others
303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31ST JANUARY, 2002

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 1056 of 2002

Faujdar

...Petitioner
Versus
Deputy
Director
of
Consolidation,
Azamgarh and others
 ...Respondents

Counsel for the Petitioner:
Sri Ram Niwas Singh
Sri V.K.S. Chandel

Counsel for the Respondents:
S.C.

U.P. Consolidation of Holdings Act-1953-
Section 48- Power Revision- whether the
Dy.
Director
of
consolidation
can
entertain the Revision directly against
appealable order? Held- in view of
difference of decisions of different Single
Judges- let the question be referred
before larger bench.

Held- Para 14

From the above discussion, it is clear
that although the language of Section 48
is in very wide term and does not admit
any exception to the effect that the
power of revision cannot be invoked
against an appealable order passed by
the Consolidation Officer if the appeal
has not been filed but in view of
conflicting views of different learned
Single
Judges
on
the
aforesaid
controversy it has become necessary to
refer this matter to Hon'ble the Chief
Justice for constituting a larger Bench to
resolve
the
conflict
between
the
conflicting decisions of different Learned
Single Judges of this Court.
Case law discussed
1995 RD-534
1998 (89) RD 578
1999 (90) RD 363
2000 RD-608

(Delivered by Hon'ble Ashok Bhushan, J.)

1. One of the questions which has
arisen in the writ petition is as to whether
the Deputy Director of Consolidation
while
exercising
jurisdiction
under
Section 48 of the U.P. Consolidation of
Holdings Act, 1953 (hereinafter to be
referred as "the Act") can directly hear the
revision against an order passed under
section 9A of the Act. The submission of
the counsel for the petitioner Sri R.N.
Singh is that the Deputy Director of
Consolidation has no jurisdiction to
entertain a revision under Section 48 of
the Act directly against the order passed
under Section 9A. He has submitted that
there is provision of appeal under Section
11 of the Act hence revision can neither
be filed nor can be entertained by the
Deputy Director of Consolidation. In
support of his submission the counsel for
the petitioner has placed reliance on the
following decisions:-

1.
1995 R.D. Page 534 Damodar
Prasad
vs.
Deputy
Director
of
Consolidation, Allahabad and others.

2.
1998 (89) R.D. page 578 Santosh
Kumar and others vs. U.P. Sanchalak
Chakbandi, Faizabad and others.

3.
1999 (90) R.D. page 363 Ranjeet
and others vs. Deputy Director of
Consolidation Ballia and others.

4.
2000 R.D. page 608 Hari Har Ram
vs. Deputy Director of Consolidation
Ballia and others