# Tissues Limited v. State of U.P. and

- **Citation:** (2010) 1 ILRA 308
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010
- **Case number:** Civil Misc. Writ Petition No. 25871 of 2009
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tissues-limited-v-state-of-u-p-and-41466
- **Pages:** 16

## Headnote

(Punishment and Appeal) Rules 199Dismissal order on ground of having
second wife-without divorce his first
wife-complaint made after 24 years of
second marriage-first wife suffering from
cancer in utress-explanation given to get
male issue for last spiritual performances
as from fist wife there were three
daughters
who
have
been
married
earlier-entering into second marriage
may be punishable offence but has no
concern with affairs of his duty-for
omission prior to 24 years at the end of
service carrier-punishment of dismissal
too
much
harsh-direction
issued
to
award minor punishment.

Held: Para 43 & 44

The conduct of the petitioner was an
absolute personal affair of the petitioner
in relation to the consummation of
second marriage and the same had got
nothing to do with the affairs of the
State or the discharge of his public duty
to that extent. The judgment in the case
of Amal Kumar Baruah of the Guwahati
High Court (supra) comes to the aid of
the petitioner.

Accordingly, for the reasons given herein
above and in the peculiar facts of the
present case as discussed I would prefer
to set aside the order of the revising
authority dated 18th November, 2008
passed by the Inspector General of
Police, Allahabad Zone, Allahabad to the
aforesaid extent only. The Inspector
General
of
Police
may,
therefore,
consider the aforesaid limited aspect of
proportionality as the other aspects need
not be interfered with. To that extent,
the order dated 18th November, 2008 is
set
aside
with
a
direction
to
the
respondent no. 2 to pass an order after
assessing
the
aforesaid
factors
in
accordance with law.
Case law discussed:
W.P.
No.
27963
of
2007
decided
on
23.07.2009, W.P. No. 7080 of 1995, 2006 (3)
GLR 106, 2006 (2) ALT 112, 2002 (1) LBESR
1046, 2008 (1) ESC 350, 2006 (5) ALJ 307,
1983 (2) SCC 442, 1987 (4) SCC 611, 1994
Supp. (3) 775, 1998 (9) SCC 416, 2005 (2)
SCC 489, 2005 (7) SCC 338.

## Text

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308 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

recovery of the collection charges to the
tune of 10%. It is contended by the
learned counsel for the petitioner that the
recovery
certificate
was
issued
for
recovery
of
the
amount
due.
Subsequently,
vide
letter
dated
24.12.2001 the same recovery certificate
was requested to be returned immediately
for
consideration,
confirmation
and
verification of the account which is
Annexure 2 to the letter. Again recovery
certificate was issued for recovering the
amount mentioned in the alleged recovery
certificate which is annexure 3 to the writ
petition. By virtue of annexure 4 a
demand notice was sent for recovery of
collection charges upto the tune of 10% of
the amount sought to be recovered.

3. The contention of the learned
counsel for the petitioner is that the first
recovery citation was suo moto called
back by the issuing authority and
subsequently another recovery citation
was issued. Infact, no proceedings in
pursuance of the recovery certificates
were started or commenced which may
cause an occasion for enhanced demand
for collection charges. He submitted that
he is mainly aggrieved on the point of
demand of collection charges @10% and
submitted that such demand can not
exceed beyond the rate of Rs.3.75 and
demand in excess is wholly unsustainable.

4. Learned Standing counsel for the
State conceded the facts and situations
raised by the learned counsel for the
petitioner regarding the processing of the
recovery certificate.

5. Learned counsel for the petitioner
referred to a case law reported in 1998(2)
AWC 1196 Asha Textiles (P) Ltd. &
another vs. State of U.P. & others
wherein it has been held that U.P.
Zamindari Abolition and Land Reforms
Rules, 1952- Rules 255 and 259-
Recovery as Arrears of Land Revenue -
Collection Charges- Recoverable at rate
of Rs.3.75 and not more- Demand in
excess thereof - wholly unsustainable. In
the same Division Bench ruling the
decision given in Civil Misc. writ petition
No. 4307 of 1981 M/s. Chemopulp
Tissues Limited Vs. State of U.P. and
others has been referred as such that the
collection charges can be recovered at the
rate of Rs.3.75 only and not more than
that. It was held in the aforesaid case
referred above that recovery charges can
not exceed more than Rs.3.75 and the
demand of the respondents in excess
thereof is wholly untenable.

6. In view of the case law as referred
above, it is apparently clear that collection
charges at the rate of 10% is wholly
unjustifiable and hence the petition
succeeds and is allowed. The respondents
are directed not to insist payment of
collection charges more than Rs.3.75 in
respect of recovery of the amount as
claimed by them in the demand notice
which is annexure 4 to the writ petition.

7. The writ petition succeeds and is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 25871 of 2009

Pancham Giri

...Petitioner
Versus
State of U.P. and others ...Respondents
1 All] S.N.F. Alloys Pvt. Ltd. V. State of U.P. and others

309

Counsel for the Petitioner:
Sri Praveen Kumar Giri
Sri K.M. Tripathi

Counsel for the Respondents:
C.S.C.
U.P.
Subordinate
Police
Officers
(Punishment and Appeal) Rules 199Dismissal order on ground of having
second wife-without divorce his first
wife-complaint made after 24 years of
second marriage-first wife suffering from
cancer in utress-explanation given to get
male issue for last spiritual performances
as from fist wife there were three
daughters
who
have
been
married
earlier-entering into second marriage
may be punishable offence but has no
concern with affairs of his duty-for
omission prior to 24 years at the end of
service carrier-punishment of dismissal
too
much
harsh-direction
issued
to
award minor punishment.

Held: Para 43 & 44

The conduct of the petitioner was an
absolute personal affair of the petitioner
in relation to the consummation of
second marriage and the same had got
nothing to do with the affairs of the
State or the discharge of his public duty
to that extent. The judgment in the case
of Amal Kumar Baruah of the Guwahati
High Court (supra) comes to the aid of
the petitioner.

Accordingly, for the reasons given herein
above and in the peculiar facts of the
present case as discussed I would prefer
to set aside the order of the revising
authority dated 18th November, 2008
passed by the Inspector General of
Police, Allahabad Zone, Allahabad to the
aforesaid extent only. The Inspector
General
of
Police
may,
therefore,
consider the aforesaid limited aspect of
proportionality as the other aspects need
not be interfered with. To that extent,
the order dated 18th November, 2008 is
set
aside
with
a
direction
to
the
respondent no. 2 to pass an order after
assessing
the
aforesaid
factors
in
accordance with law.
Case law discussed:
W.P.
No.
27963
of
2007
decided
on
23.07.2009, W.P. No. 7080 of 1995, 2006 (3)
GLR 106, 2006 (2) ALT 112, 2002 (1) LBESR
1046, 2008 (1) ESC 350, 2006 (5) ALJ 307,
1983 (2) SCC 442, 1987 (4) SCC 611, 1994
Supp. (3) 775, 1998 (9) SCC 416, 2005 (2)
SCC 489, 2005 (7) SCC 338.

(Delivered by Hon'ble A.P. Sahi J.)

1. The petitioner, a Head Constable
of the U.P. Police and a government
servant, has been dismissed from service
on the charge of contracting a second
marriage, even though the first spouse was
living without permission of the competent
authority. This case is not unique because
of the point of law involved, but because of
its peculiar facts where the petitioner has
been assessed by the respondents to be the
perpetrator
of
his
own
misfortunes.
Interestingly enough, the petitioner basking
in the glory of his cultural belief, set upon
to have a second wife during the life time
of the first one, only to realise after quarter
of a century that he was guilty of
misconduct as a government servant for
having
entered
into
this
bigamous
relationship.

2. This began with, as usual, by a
complaint made by one Mr. Matamber
Tiwari, who is a resident of the same
village as the petitioner. The petitioner
alleges that Mr. Matamber Tiwari was
annoyed on account of a land transaction,
which involved the two wives of the
petitioner, and this long enmity manifested
itself in the complaint made by Mr.
Matamber Tiwari to the Deputy Inspector
General of Police, Allahabad. By this time,
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

when the complaint was made in the year
2007, the petitioner had almost completed
his service tenure and was about to retire
after a year. The complaint which was
made in 2007 contained a recital that the
petitioner had entered into a second
marriage without requisite permission and
he was, therefore, continuing in service in
violation of Rule 29 of the U.P.
Government Servant Conduct Rules, 1956.
Rule 29 is quoted below for ready
reference:

"29. 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 fist obtaining the permission of the
Government."

3. The petitioner is a Hindu by
religion, which fact is undisputed. Section
17 of the Hindu Marriage Act makes
bigamy punishable under Sections 494 and
495 of the Indian Penal Code. Section 17
of the Hindu Marriage Act is quoted
below:

"17.
Punishment
of
bigamy-Any
marriage between two Hindus solemnized
after the commencement of this Act is void
if at the date of such marriage either party
had a husband or wife living; and the
provisions of sections 498 and 495 of the
Indian Penal Code (45 of 1860), shall
apply accordingly."

4. The complaint which was the
outcome of a evil neighbours design, saw
its way to an inquiry, which in the
preliminary round was conducted by the
Circle Officer, Shri A.K. Shukla, who
submitted a report on 25th March, 2008.
The petitioner was issued a notice
informing him that the report in relation to
his alleged bigamous relationship has been
received and one Mr. Shiv Baran Singh
another Circle Officer was appointed as an
Enquiry Officer to conduct a regular
inquiry under the U.P. Subordinate Police
Officers (Punishment and Appeal) Rules,
1991. The Enquiry Officer served the
petitioner with a charge sheet dated 5th
April, 2008 and after conducting the
inquiry submitted a report on 28th May,
2008. The petitioner was found to have
contracted a second marriage without
permission of the State Government which
amounted to a misconduct. A show cause
notice, after the inquiry, was issued to the
petitioner on 1st June, 2008 whereafter the
explanation submitted by the petitioner, the
Enquiry Officer's report and the evidence
on record was taken into account and the
petitioner was punished by dismissal from
service on 21st June, 2008. The petitioner
preferred an appeal, which was also
dismissed on 20th August, 2008 and a
revision filed before the Inspector General
of Police against the order of the Appellate
Authority
was
also
dismissed
on
18.11.2008. The petitioner has justified his
actions and questioned the legality and
correctness
of
the
aforesaid
orders
impugned in the present writ petition and
has prayed for quashing of the same with a
direction to the respondents to treat him as
a regular employee and award him all such
benefits even after his retirement. It is
undisputed that the petitioner has also
attained his age of superannuation which
he would have attained even otherwise
during the course of these proceedings.
1 All] Pancham Giri V. State of U.P. and others

311
5. The petitioner having been
deprived of his livelihood and his future
pension contends that while he was in
service in the prime of his life, he was
blessed with four daughters from his first
wife Parvati. One of the daughters died and
three, who survived were married by the
petitioner respectively. However, his first
wife was allegedly suffering from cancer
of the uterus and, therefore, with her
consent the petitioner contracted the
second marriage with Dewrati in the year
1982 only for the sole purpose of having a
son, whose birth would guarantee his
salvation and emancipation from this
world as per accepted Hindu religious
belief. The petitioner contends that this
second marriage was under the aforesaid
compulsory
circumstances,
which
emanated out of this old traditional and
orthodox belief that had a moral and
religious sanction behind it. The petitioner
consummated the second marriage for the
said purpose, which has been admitted by
himself throughout the inquiry proceedings
and is also corroborated by the statement
of the first wife Parvati, who was produced
as
a
witness
during
the
inquiry
proceedings. The petitioner had also taken
a defence that he had duly intimated the
then
Superintendent
of
Police,
Farrukhabad, Mr. G.P. Sharma about his
intention to do so, and a plea was also set
up before the authorities that permission
had
been
granted
by
the
then
Superintendent of Police. The petitioner,
however,
failed
to
produce
any
documentary evidence to demonstrate the
same on this score. The Enquiry Officer
found the petitioner to have misconducted
himself, which finding was accepted by the
Disciplinary Authority and the services of
the
petitioner
were
dispensed
with
accordingly.

6. In appeal, the petitioner raised
several grounds including the ground of
dis-proportionality of the punishment and
all other grounds which had been raised
before the Disciplinary Authority. The
Appellate Authority, in addition to the
reasons given by the punishing authority,
further held that even otherwise the
Superintendent of Police had no authority
to extend any such permission and it was
to be given by the State Government or an
Officer authorized in this behalf. In the
absence
of
any
such
document
to
substantiate the said plea, the conduct of
the petitioner was in breach of Rule 29
aforesaid. The Appellate Authority further
recorded that such a permission can only
be granted where the first wife is dead, or
she is mentally unsound or there is a
divorce
established
under
law.
The
Appellate Authority held that none of these
contingencies did exist and even if, the
subsequent
marriage
was permissible
under the personal law of the petitioner, he
was not entitled to any such permission.
Thus, the conclusion of the Appellate
Authority was that firstly, there was a
complete lack of evidence of permission
and secondly, no such permission could
have been granted to the petitioner. On the
question of proportionality, the Appellate
Authority did not find any valid reason to
interfere with the same and accordingly
rejected the appeal.

7. The petitioner in his revision
raised all the aforesaid issues and further
questioned
the
correctness
of
proportionality on the ground of sub Rule
3 of Rule 29 that a different punishment
ought to have been awarded. He further
raised the issue that if the second marriage
was not permissible in law then it was void
and a void marriage cannot be made the
basis for invoking the provision of Rule
312 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

29, which contemplates a subsisting and
valid bigamous relationship. The petitioner
further submitted that no evidence was led
by the department to dislodge the stand of
the
petitioner
that
he
had
sought
permission and since no evidence was led
in the negative, therefore, the procedure
adopted by the respondents is defective
and no inference of not having sought
valid permission could have been drawn.
The issue of proportionality was again
repeated but the revisional authority
negatived
all
these
contentions
by
recording clear findings. It was found by
the revising authority that sub-Rule 3 of
Rule 29 had already been deleted through a
notification
dated
20.10.1976
and,
therefore, a lesser punishment could not
have been awarded. The question of
marriage being void was also turned down
on the ground that the conduct of the
petitioner of having the company of
another woman and begetting a child out
of the said relationship under any
circumstance cannot be accepted as a
circumstance to avoid punishment of
misconduct, inasmuch as, the petitioner
had according to his own admission
contracted the second marriage. Taking an
over all view of the situation, the Inspector
General of Police did not find the
punishment to be disproportionate and
upheld the orders under challenge.

8. Shri K.M. Tripathi, learned
counsel for the petitioner has advanced his
submissions to the best of his abilities and
he submits that apart from the correctness
of the orders that have been assailed, the
petitioner
has
been
punished
disproportionately
which
shocks
the
conscience in the given background of the
case and, therefore, the orders impugned
are liable to be set aside. Learned counsel
has
relied
on
several
decisions
to
substantiate his arguments. The judgments
relied on are that of (1) Writ Petition No.
27963 of 2007 (Smt. Raj Bala Sharma Vs.
State of U.P. and others) decided on
23.07.2009, (2) Writ Petition No. 7080 of
1995 (Awadhesh Chandra Sharma Vs.
U.P.P. Service Tribunal Lucknow and
others, (3) Amal Kumar Baruah Vs. State
of Assam and others reported in 2006 (3)
GLR 106, (4) Syed Azad Vs. Divisional
Security
Commissioner,
Railway
Protection Force, Scr and another
reported in 2006 (2) ALT 112 and (5)
Narendra
Kumar
Jain
Vs.
Food
Corporation of India and others reported
in 2002 (1) LBESR 1046.

9. Learned standing counsel, on the
other hand, urged that the petitioner having
admitted the second marriage, it is not
open to him to question the factual basis of
the same to gain any advantage by raising
a legal argument. It is submitted on behalf
of the State that the action of the petitioner
was a clear case of misconduct and the
same having been discovered after more
than 25 years, does not in any way dilute
the
misconduct
committed
by
the
petitioner. There is no dilution of the
impact of Rule 29 merely because of
passage of time and the consequences have
to be accepted in law. Learned standing
counsel relied on two decisions namely
that of Ramesh Pal Singh Vs. Union of
India and others reported in 2008 (1) ESC
350 and Veerpal Singh Vs. Senior
Superintendent of Police and others
reported in 2006 (5) ALJ 307 to contend
that the guilt having been established, the
petitioner has been clearly found to have
committed a misconduct and, therefore, the
punishment is not dis-proportionate. It is
submitted
that
the
petitioner
has
voluntarily
entered
into
the
second
marriage and there was no such legal
1 All] Pancham Giri V. State of U.P. and others

313
compulsion or any other justification
available to petitioner in law so as to
justify his conduct of second marriage and,
therefore, a mere convenience which has
been given the shape of a moral sanction,
disentitled
the
petitioner
from
any
compassion.
The
impugned
orders
therefore deserve to be affirmed.
10. I have heard Shri K.M. Tripathi
and Shri P.K. Giri, for the petitioner, the
learned
standing
counsel
for
the
respondents and perused the affidavits that
have been exchanged between the parties.

11. The petitioner's effort is to justify
his second marriage on the principles of
certain moral and religious sanctions
which he believes to be necessary for his
benefit and the benefit which he is likely to
receive upon his departure from this world.
His belief is that his soul and that of his
ancestors will rest in peace if he dies
leaving behind a son to discharge his pious
obligations. It is not only the petitioner but
his first wife Parvati as well who has
clearly stated in her statement before the
Enquiry Officer that husband and wife
both profess honestly to believe that if the
husband contracts a second marriage for
the purpose of having a son, this will help
to bring about salvation of the parents. The
son born out of the second wedlock would
in their belief would be the only competent
person who would be entitled to perform
the rites and duties for such obligations,
and as fate would have it, the petitioner
and his second wife has been blessed with
three
sons
and
one
daughter.
The
petitioner, in my opinion, has a right to
have believed in his moral convictions and
for that it was open to him to conduct
himself in a manner so as to furnish faith to
his belief. But it was not open to the
petitioner to do this without the permission
of the State Government. It is for this
reason that the limitations have been
prescribed in Rule 29. Rule 29 is
permissive in nature and not prohibitory to
the extent of absolute exclusion of a
second marriage. The limitations are,
however, in the absence of the first spouse
or her mental unsoundness or a situation
where the husband is a divorcee. These are
the limitations prescribed by law to define
the limits of a decent conduct of a
government servant. Bigamy would not be
a misconduct to the aforesaid extent. The
permission to be granted by the State
Government takes care of the basic need of
human life and in my opinion, is a measure
of social improvement. The petitioner may
be thinking rightly and for him it was
courteous to have obtained the consent of
the first wife, but in my opinion, the
personal morals of the petitioner was
confined to his own necessity of satisfying
his religious belief. This personal need of
the petitioner to make it convenient for him
to fortify his religious belief may have a
moral sanction but it does not have a
sanction in law. The law as indicated
above declares bigamy as an offence after
1955. Such an act under the 1956 Rules is
a misconduct if the second marriage is
contracted without permission. The words
used in Rule 29 is clearly notwithstanding
anything contained in the personal law of
the government servant that may make
such a subsequent marriage permissible.
Thus, the rigour of Rule 29 makes it
obligatory for a permission to be granted
by the State Government. The petitioner
did attempt to establish this permission but
has failed. He did not produce any oral or
documentary proof to establish any attempt
having been made to seek permission and
obtain it from the appropriate authority.
His mere statement, therefore, was rightly
disbelieved by the authorities and in the
absence of any material proof this finding
314 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

on a question of fact cannot be a subject
matter of judicial review under Article 226
of the Constitution of India. It is, thus,
clear that having failed to establish
anything with regard to the grant of
permission by the State Government, the
petitioner has himself invited the invoking
of the aforesaid Rule which may have been
at the instance of a unruly neighbour.

12. The law recognizes the act of the
petitioner as a misconduct and the
supporting statement of his first wife, in
my opinion, cannot improve the situation.
The attempt of the petitioner, according to
his own statement, was to fill the void of a
son in the family. The second marriage
brought about three sons later on. This was
his personal choice but was a legal lapse,
little realising that the petitioner may have
to face the consequences of such a folly.

13. I have considered the entire facts
and circumstances of the case and it is
difficult to even push a needle into the
findings of the authorities that link each
other perfectly. There is no legally
permissible way to drive a wedge and
create a space for faulting the findings
recorded by the authorities below. The
petitioner, therefore, could not dislodge the
findings of misconduct in law on the basis
of the facts that have emerged.

14. The only issue which now tinkers
with the conscience is the fact that this
dismissal has come after a lapse of more
than a quarter century of the services of the
petitioner, who was at the fag end of his
career and had a little more than one year
to superannuate. The complaint itself
emanated in the year 2007 and the
complainant Mr. Matamber Tiwari in his
statement during inquiry while being
cross-examined stated that he came to now
about the misconduct Rules only in the
year 2007 even though he had knowledge
of the bigamous relationship from before
and, therefore, the complaint was made in
the year 2007. It is quite possible that the
bitterness of his personal enmity with the
petitioner may have been also one of the
causes of complaint, but the fact remains
that the complaint was made after 25 years
of the marriage, which took place in 1982.

15. The petitioner has three sons and
a daughter from the second marriage. This
aspect of the matter that the complaint has
come up at the fag end of the career of the
petitioner, can be a circumstances for
going into the question of proportionality
of
punishment.
However,
such
examination can be made only if the
punishment shocks the conscience of the
Court. The circumstances are that the
petitioner had four daughters from his first
married out of whom one died and the
other three were married by him to the
satisfaction of his first wife. From his
second marriage, the petitioner has three
sons and one daughter. It is, therefore, now
a very large family which has to be looked
after by the petitioner and the petitioner
himself has to sustain his own family with
two wives. All three persons namely the
petitioner and his two wives, must now be
in their advance age and incapable of any
further resources to sustain their livelihood
apart from what has already been acquired
by them. Not only this, the social
obligations of such a family have to be
undertaken. These circumstances also add
to the misery of the petitioner, who has
been
dismissed
from
service.
The
petitioner has admittedly superannuated
during these proceedings and, therefore, he
also looses the right to receive pensionary
benefits. The petitioner's misconduct was
an adventure undertaken by him, which
1 All] Pancham Giri V. State of U.P. and others

315
ultimately turned out to be his own
disaster. The desire to have salvation in
future life has ruined his present prospects.
The approach of the petitioner was
therefore not only unpragmatic but was an
invitation founded on his own follies. The
consequences
that
have
visited
the
petitioner does not involve him alone but
his entire family. It is this aspect of the
matter which tends to bring about a pause
in the process of reasoning for the purpose
of considering the proportionality of the
punishment.

16. Before entering into this a word
about the decisions which have been cited
at the bar on both sides. The case of
Awadhesh Chandra Sharma (supra) relied
upon by the learned counsel for the
petitioner was with regard to a charge
against an employee, who allowed a truck
to enter within the municipal limits without
payment of octroi duty. The case was
disposed
of
with
a
finding
of
disproportionate punishment by relying on
the Division Bench judgment of Narendra
Kumar Jain (supra). In the decision of
Narendra Kumar Jain a finding was
recorded that the government servant may
have been negligent in the performance of
his duty but the same would not constitute
misconduct. In my opinion, both these
judgments do not apply on the facts of the
present case, inasmuch as, in those cases
there was a negligence of duty and the
lapse had resulted into some loss to the
State Government. These cases are not in
relation to a misconduct founded on
bigamy or violation of Rule 29 of the 1956
Rules.

17. The other two decisions are of the
Guwahati High Court and the Andhra
Pradesh High Court. The Andhra Pradesh
High Court came to the conclusion that the
punishment of compulsory retirement on
the ground of bigamy was disproportionate
and was substituted by stoppage of two
increments with cumulative effect. It was a
case of a marriage by a Muslim couple and
it was held that the fact of the marriage
receded into the background and, therefore,
on the peculiar facts of the said case it was
held that they being Muslims a second
marriage could have been contracted.
Nonetheless, in spite of the fact that the
marriage was without permission as
required under the Rules the punishment
was reduced.

18. In the decision of the Guwahati
High Court referred to herein above the
second marriage was admitted but it was
held that the second marriage had got
nothing to do with the official position or
the discharge of official duties of a person.
The Court further came to the conclusion
that the findings of bigamy as defined
under Sections 494 and 495 I.P.C. has been
made a compoundable offence invoking
Section 320 Cr.P.C. In such circumstances
where the criminal law treats different
offences on different footing making such
an offence compoundable, the Court came
to the conclusion that it would be too harsh
to dismiss a person from service. The
award of dismissal was set aside with a
direction to award some lesser punishment
leaving it to the authority to consider the
proportionality thereof.

19. On the other hand, the decisions
which have been relied upon by the
learned standing counsel, it is to be seen
that in the case of Ramesh Pal Singh
(supra), the delinquent employee had taken
shelter of a false statement about the
knowledge of the second marriage to the
first wife. It was found as a measure of fact
that the employee had not informed the
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

first wife and she was totally ignorant of
the same. On the contrary, he had
misguided
his
first
wife
and
had
consummated the second marriage. In such
circumstances, it was found that the
circumstances
did
not
shock
the
conscience of the Court and rather an
appropriate punishment had been rightly
awarded. The facts of the said case,
therefore, are entirely different from the
facts of the present case because, here the
petitioner and his first wife, both have
joined
together
in
defence
of
the
consummation of the second marriage.

20. The decision in the case of
Veerpal Singh (supra) as relied upon by
the learned standing counsel has also
proceeded to hold that the punishment was
founded on the basis of the misconduct of
the petitioner and the scope of interference
being limited, there was no occasion to
reduce the punishment. The Court held in
the penultimate paragraph that where
bigamy
is
a
criminal
offence,
a
government servant having committed a
misconduct on this score cannot ask for
award of minor or lesser punishment.

21. There is yet another decision,
which has been relied upon by the learned
counsel for the petitioner namely that of
Smt. Raj Bala Sharma (supra). The
petitioner therein was a lady Officer, who
married a constable in the U.P. Police
Services. She was a widow, who after
having lost her husband married the said
constable. She, however, took a plea that
she was not aware that the person, whom
she married, was already married to
someone else. Both of them lost their
services. This Court found that the conduct
of the lady Officer, who was the petitioner
in the writ petition, was a natural course
undertaken by a young widow to support
her life. The relevant paragraph is quoted
below:

"Here is a case of a widow of a police
personnel who was given compassionate
appointment on the death of her husband
in harness on 10.2.92. At the time of the
death of her husband, the petitioner had
two minor children to maintain. She was
given
compassionate
appointment
on
21.11.92 on the post of constable (m). It is
evident from record that the petitioner was
subsequently promoted on the higher post
of Assistant Sub Inspector of Police (m).
This shows that her work, conduct and
performance in the services had remained
satisfactory. It was natural for a young
widow like the petitioner to get attracted to
a
colleague
working
in
the
same
department. Both were in the ministerial
establishment working in the same office.
The love is blind. It also appears from the
record that Sri Ajeet Singh was supporting
his senior colleague Smt. Raj Bali Sharma
and her children in the time of need. It is
borne out from the record that Sri Ajeet
Singh was providing mental and other
support to the petitioner and her children
to carry on in life at a small city, i.e.,
Bulandshahr. In peculiar circumstance in
which the widowpolice personnel was
living, it was natural for her to be attracted
to a supportive man. Like in garden a
creeper (Lata, vallarre) needs

a strong support to climb up and sustain
itself, a woman also may need a support
who could stand with her facing the life
garden in hard times. Even a small stream
needs support of its banks,strong hills
rocks to proceed further in the process to
transform itself into a big mighty river."

22. The court further went on to hold
that since the petitioner had not been
1 All] Pancham Giri V. State of U.P. and others

317
charged with having failed to obtain
permission, therefore, Rule 29 could not
have been invoked. The finding is as
follows:

"As far as petitioner's statement is
concerned , she has demonstrated that she
had no knowledge about the first marriage
of Sri Ajeet Singh. As far as the offence of
remarriage (as per section 494 IPC) is
concerned, in the present case the
petitioner Smt. Raj Bala Sharma had
married after the death of her first
husband. Section 494 I.P.C. deals with a
person who had a husband or wife living.
This charge cannot be fastened on Smt. Raj
Bala
Sharma,
petitioner.
There
is
substance in the submission of the learned
counsel for the petitioner that according to
section 17 of Hindu Marriage Act, no
marriage between two Hindus could be
solemnised if one of them has a husband or
wife living. If such marriage is solemnised
after the commencement of this Act it
would be null and void. The provisions of
section 494 and 495 IPC shall apply in
such cases. Applying this law, the
marriage of the petitioner with Sri Ajeet
Singh was null and void under law and no
punishment could be awarded against her
under section 29 of the U.P. Govt. Servant
Conduct Rules, 1956. As per section 11
read with section 5 of the Hindu Marriage
Act, 1955, the marriage may be held as
void. The petitioner's case cannot be dealt
with under under rule 29 of the U.P. Govt.
Servant Conduct Rules, 1956. Sri Ajeet
Singh had given in writing to the Enquiry
Officer that he had not informed the
petitioner regarding her earlier marriage.
The petitioner appears to be innocent in
the present case.

In Rule 29 of the U.P. Govt. Servant
Conduct Rules, 1956, the main thrust has
been given on the term " without obtaining
prior permission of the government". In
this case the petitioner has not been
charged for this misconduct. She has been
charged only for remarriage and not for
charge of not obtaining the permission of
the government. Neither there was such
accusation against the petitioner nor it was
found proved."

23. In my opinion, I have certain
reservations about the consummation of a
second marriage on natural instincts rather
than a legal necessity. Nonetheless, the
facts of the said case are entirely different
from the present case and, therefore, the
said ratio would not apply herein.
Secondly, the finding recorded is that there
was no charge of not having taken
permission under Rule 29. This aspect also
makes the case distinguishable and in the
instant case the specific charge is in
relation to violation of Rule 29. The said
decision, therefore, in my opinion would
not come to the aid of the petitioner. On
the aforesaid grounds accordingly the
Court appears to have been emotionally
driven to hold that the punishment was not
commensurate with the gravity of the
charges and accordingly interfered with the
punishment. It has time and again been
held that a case in an authority on what it
actually decides and no two cases have
identical set of facts.

24. In view of these principles, the
decisions relied upon by the learned
counsel for the petitioner except the
decision of the Guwahati High Court do
not exactly fit in so as to invoke the
doctrine pronounced in the said decisions
to support the cause of the petitioner.

25. Coming to the decisions of the
Apex Court, the leading decision on the
318 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

doctrine of proportionality which has held
the field for about more than 25 years is
the case of Bhagat Ram Vs. State of
Himanchal Pradesh reported in 1983 (2)
SCC 442. The view was followed in the
case of Ranjeet Thakur Vs. Union of
India and others reported in 1987 (4) SCC
611 and later on in the case of Union of
India Vs. Giriraj Sharma reported in 1994
Supp.
(3)
775.
This
doctrine
of
proportionality was carried forward in the
case of B.C. Chaturvedi Vs. State of U.P.
reported in 1998 (9) SCC 416.

26. I have gone through the later
decisions and the other decisions in this
regard up to the decision in the case of
Bharat Forge Company Limited Vs. Uttar
Manohar reported in 2005 (2) SCC 489
and the case of V. Ramana
Vs.
A.P.S.R.T.C. and others reported in 2005
(7) SCC 338.

27. All these decisions have broadly
indicated that in the matter relating to
power of judicial review, this doctrine is
rarely invoked where the quantum of
punishment can be commented upon if it is
shockingly disproportionate to the guilt
found and is also shocking to the
conscience of the Court. Circumstances
have been found to interfere with an order
of extreme punishment of dismissal if the
misconduct was an out come of
inevitable
and
unexpected
circumstances with no intention to
wilfully commit a misconduct. In the case
of V. Ramana (supra) the Apex Court had
the occasion to indicate that what is
shocking to the conscience of the Court
means what is in defiance of logic and
moral standard.

28. The word "conscience" means,
according to the ordinary dictionary
meaning, a knowledge of right or wrong
within oneself. The conscience develops
according to the circumstances of the
Society in which one lives. The standards
of morality of a Society, which have been
carried over for long attribute to the
conscience. Any lapse of morality in
breach of such standards is a deviation
from the conscience. It is the morality of
an action which basically is the reason to
invoke the conscience.

29. There is a distinction between the
words "conscience" and "conscious". This
distinction has been very neatly and subtly
explained in a recent article written by the
Editor
of
the
Complete
Wellbeing
Magazine Mr. Manoj Khatri (Vol. IV Issue
4 Feb. 2010). The writer explains the
distinction in his words as follows:

"Among the most common mistakes of
English usages is the confusion between
the words conscience and conscious.
English experts say that although both are
nouns and sound similar, their meanings
are totally different. Different they are. But
in my opinion, the confusion doesn't stop at
just their usage. In fact, people often allow
their conscience to dictate their conduct,
when all they need is their consciousness.

Let me elaborate. Conscience is most
often associated with morality-knowing
"right" from "wrong", and behaving
accordingly.
The
dictionary
defines
conscience as: the complex of ethical and
moral principles that controls or inhibits
the actions or thoughts of an individual.
Note the use of the words ethical, moral,
and
principles,
which
indicate
that
conscience is a social phenomenon. In
other words, conscience is not natural-it's
acquired. It's the result of long and deep
social conditioning of out minds.
1 All] Pancham Giri V. State of U.P. and others

319

But that is where the trouble begins.
Because conscience is really a social
phenomenon, there can never be any
consensus on it. You see, what's moral or
ethical for one group of people need not be
for another. Think about it and you will
realise that our conscience depends on
many external factors-our parents. Our
family, our religion, our educational
institutes, out city, our country and so on.
At the most basic level, conscience is the
result of a list of dos and don'ts handed
down to us by the society and culture we
belong to.

Consciousness, on the other hand, is
strictly personal. It's is an awareness that
comes from being alive. It's our natural
instinct that tells us what is right for us and
what is not. With consciousness, there is no
need for any consensus because you simply
know. To me, conscience often blocks out
our
consciousness.
That's
because,
conscience is due to the presence of
negative feelings such as fear and guilt,
whereas consciousness is due to the
presence of love.
Let me explain with an example.
When you see a hungry being on the street
and you share your food with him because
the religious scriptures say so, or because
your parents instilled moral values in you,
then it's your conscience at work. But if
you share the food because you know how
it feels to be hungry, then you're acting out
of consciousness.

So, conscience pricks you [makes you
feel guilty] when you don't do something
you must or do something you ought not
to; with consciousness, the though of
moral/immoral
simply
doesn't
arise
because you act out of a knowing. If you let
go of your conscience and allow your
consciousness to dictate your conduct, you
may find a different kind of satisfactionand it will be one that comes minus the
pricks!"

30. What has been indicated by the
Supreme Court is that, something which
shocks the conscience of the Court, may be
a ground to invoke the proportionality
doctrine.