Birendra Kumar Singh v. Commandant, Central Industrial Security Force (CISF), Unit ASG, Thiruvananthapuram; The Deputy Inspector General, Central Industrial Security Force (CISF) Airport - South Zone, Chennai; The Inspector General, Central Industrial Security Force (CISF) Airport Security, O/O The Special Director, General Block No.13, C.G.O Complex, Lodhi Road, New Delhi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **FRIDAY, THE 23RD DAY OF MAY 2014/2ND JYAISHTA, 1936** **WP(C).No. 20381 of 2011 (W) ----------------------------** **PETITIONER(S): --------------** **No. 062280057 CONSTABLE BIRENDRA KUMAR SINGH, CISF UNIT ASG, TRIVANDRUM. BY ADVS.SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU** **RESPONDENT(S):** **--------------** **1. THE COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, CISF UNIT ASG THIRUVANANTHAPURAM - 695 008. 2. THE DEPUTY INSPECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE (CISF) AIRPORT - SOUTH ZONE, 2ND FLOOR, D BLOCK RAJAJI BHAVAN, BASANT NAGAR, CHENNAI - 600 090.** **3. THE INSPECTOR GENERAL,** **CENTRAL INDUSTRIAL SECURITY FORCE (CISF) AIRPORT SECURITY, O/O. THE SPECIAL DIRECTOR, GENERAL BLOCK NO.13, C.G.O COMPLEX, LODHI ROAD NEW DELHI -3.** **BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. SRI.T.SANJAY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 20381 of 2011 (W)** ## **APPENDIX:** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:**|**TRUE COPY OF THE MEMORANDUM NO. V-15014/ASG(TVM)/Disc**| |---|---| ||**(Maj-04)/2010/406 DATED 20.1.2010 ISSUED BY THE 1ST**| ||**RESPONDENT.**| |**EXT.P2:**|**TRUE COPY OF THE REPLY DATED 29.1.2010 TO THE 1ST**| ||**RESPONDENT.**| |**EXT.P3:**|**TRUE COPY OF THE ORDER NO.V-15014/CISF/ASG(TVM)/UR-**| ||**36/BKS/DISC/10/4323 DATED 31.7.2010 ISSUED BY THE 1ST**| ||**RESPONDENT.**| |**EXT.P4:**|**TRUE COPY OF THE APPEAL DATED 12.8.2010 TO THE 2ND**| ||**RESPONDENT.**| |**EXT.P5:**|**TRUE COPY OF THE ORDER NO.V-15019/L&R/AP-SZ/Ap1-**| ||**10/2010/4792 DATED 21.10.2010 ISSUED BY THE 2ND**| ||**RESPONDENT.**| |**EXT.P6:**|**TRUE COPY OF THE REVISION PETITION DATED 20.11.2010 TO**| ||**THE 3RD RESPONDENT.**| |**EXT.P7:**|**TRUE COPY OF THE REVISIONAL ORDER NO.V-**| ||**11014/APS/KKB/LS/2010/625 DATED 18.1.2011 ISSUED BY THE**| ||**3RD RESPONDENT.**| ## **RESPONDENTS' EXHIBITS:** **EXT.R1(a): TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 28.11.2007. EXT.R1(B): TRUE COPY OF THE JUDGMENT PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM IN OP(HMA) NO.746/2009 DATED 13.07.2009.** ## **TRUE COPY** ## **KP** **P.A. TO JUDGE.** **“CR”** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 20381 of 2011 -------------------------------------------Dated this the 23rd day of May, 2014 ## **JUDGMENT** Dismissal of the petitioner who was working as a Constable under the 1st respondent/CISF, for having contracted a second marriage during the life time of the spouse in the first marriage, in contravention of the Rule 21 (2) of the CCS Conduct Rules, as modified by the revisional authority considering the young age of the petitioner (modifying the 'dismissal' from the service as 'removal' from service) thus removing the bar for obtaining civil employment, is the subject matter of challenge in this writ petition. 2. The petitioner applied for and obtained employment as a Constable under the first respondent and joined duty accordingly, in the year 2006. While serving the first respondent as above, Ext.P1 charge sheet dated 20.1.2010 was issued to the petitioner alleging that, he had contracted a second marriage with a lady named Ms. Raj Kaur during the subsistence of the earlier W.P.(C). No. 20381 of 2011 -2- marriage. The allegation levelled against the petitioner was sought to be denied by submitting Ext.P2 reply. An enquiry was ordered in tune with the relevant Rules and the Enquiry Officer submitted his report on 21.5.2010, finding the delinquent employee guilty. After considering the facts and figures, the first respondent imposed the punishment of 'dismissal' from the service as per Ext.P3 order dated 31.7.2010. 3. The petitioner preferred Ext.P4 appeal before the second respondent, who considered the same and interference was declined, confirming Ext.P3 punishment, as per Ext.P5 order dated 21.10.2010. This made the petitioner to avail the revisional jurisdiction as provided under the relevant Rules by submitting Ext.P6 revision petition before the third respondent. After considering the facts and circumstances, the third respondent arrived at a finding that, the finding arrived at by the disciplinary authority and by the appellate authority did not warrant any interference. However, considering the young age of the petitioner, the punishment of 'dismissal' from service was modified as 'removal' from the service, as per Ext.P7 order dated 18.1.2011, which is still sought to be intercepted by this Court by W.P.(C). No. 20381 of 2011 -3- filing this writ petition. 4. A detailed counter affidavit has been filed on behalf of the respondents rebutting the averments and allegations raised by the petitioner. Copies of the relevant documents, particularly, the Marriage Certificate to establish the case of the Department and a copy of the proceedings of the Family Court, Thiruvananthapuram granting divorce to the petitioner in respect of the earlier marriage, in OP(HMA) NO. 746/2009 dated 13.07.2009, have been produced as Exts. R1(a) and R1(b) respectively. 5. The learned counsel for the petitioner submits that, the proceedings initiated against the petitioner and the enquiry leading to the finding and imposition of punishment are per se wrong and unsustainable in all respects. It is stated that, there is violation of the principles of natural justice, in so far as, the contents of many of the documents were in Hindi and that English translations were not given to the petitioner, by virtue of which, the petitioner found it difficult to understand things. Similarly, it is stated that, the proceedings were initiated on the basis of the complaint preferred by the wife in the second W.P.(C). No. 20381 of 2011 -4- marriage, who in fact was not examined by the Enquiry Officer. So also, the witnesses referred to in the marriage certificate or the person who issued the same were also not examined and further that the documents produced in the course of enquiry were only the attested photocopies (Marriage Certificate) and not the original. This being the position, there was no legally acceptable evidence to arrive at the finding and hence the enquiry itself is vitiated, submits the learned counsel. It is also pointed out that the version of the Department as to the violation of Rule 21(2) of the CCS Conduct Rules has not been specifically stated in Ext.P1 charge sheet and as such, the charge sheet is vague as well. The learned counsel for the petitioner also points out that the burden of proof of the alleged misconduct is upon the Department and it cannot be shifted to the shoulders of the petitioner. 6. The learned Central Government Counsel for the Department submits that, the petitioner has not raised any plea of malafides and the proceedings were initiated and finalized on the basis of actual facts and figures. On receipt of the complaint of the second wife as to the earlier marriage, the position was got W.P.(C). No. 20381 of 2011 -5- enquired into and it was accordingly, that the proceedings were initiated and finalized leading to the impugned orders. The factual position is clearly described in Ext.P1 charge sheet, which was clearly understood by the petitioner, who replied the same vide Ext.P2, denying the contract of second marriage during the subsistence of earlier marriage and as such, the non mentioning of Rule 21(2) of the CCS Conduct Rules in Ext.P1 is of no consequence. It is also stated that the first marriage was contracted by the petitioner as early as on 12.5.2003 and a child was borne in said marriage, who is of 'four' years age which is clearly discernible from Ext.R1(b), a copy of the proceedings granting divorce by the Family Court, Thiruvananthapuram in OP (HMA) No. 746/2009, pursuant to a petition jointly filed by the petitioner and the first wife under Section 13(B) of the Hindu Marriage Act. Ext.R1(a) Marriage Certificate reveals that the second marriage was contracted between the petitioner and the person by name Raj Kaur on 28.11.2007, i.e., during the subsistence of the earlier marriage contracted on 12.5.2003 and as such, the petitioner's plea that, the re-marriage was conducted only on 18.9.2009, after obtaining Ext.R1(b) divorce, W.P.(C). No. 20381 of 2011 -6- does not hold any water. It is also pointed out that, absolutely no materials had been produced by the petitioner to substantiate the contention that, the second marriage was contracted only on 18.9.2009, i.e., after getting the divorce. 7. The crucial question to be considered is whether, the Department has adduced necessary evidence in support of the finding and to sustain the punishment and whether there is any violation of the principles of natural justice or relevant provisions of law. On going through the materials on record, this Court finds that the factual position leading to Ext.P1 Charge Sheet has been clearly described in Ext.P1, which has been duly and correctly understood by the petitioner, who replied the same vide Ext.P2. The petitioner himself is a North Indian, who is stated as belonging to the State of Jharkhand. He has not put up any specific case that, he does not know Hindi. This Court finds it difficult to accept the version of the petitioner as to the violation of principles of natural justice. 8. There is a case for the petitioner that, non examination of the complainant, i.e., the second wife, at whose instance the proceedings were initiated is fatal. The question is whether the W.P.(C). No. 20381 of 2011 -7- proceedings were finalized on the basis of the complaint given by the said person alone, which cannot but be answered in the negative, in view of the admitted production of copy of the Marriage Certificate before the Enquiry Officer (copy of which has been produced before this Court as well, as Ext.R1(a)). Admittedly, Ext.R1(a) Marriage Certificate has been issued by the competent authority under the relevant statute, certifying the marriage between the petitioner and the person by name Ms. Raj Kaur, having contracted the same on 28.2.2007, on which day the earlier marriage contracted on 12.5.2003 was in subsistence. The only point to be considered is whether, the said document which is stated as an attested photocopy of the Marriage Certificate could have been accepted in evidence to arrive at the finding against the petitioner, or whether the original of the Marriage Certificate should have been insisted or was it necessary for the Department to have summoned the concerned officer who issued the said Certificate, to prove the same. 9. It is settled law that, unlike criminal proceedings, the degree of proof applicable to disciplinary proceedings is much on the lesser side; where 'preponderance of probability' is sufficient. W.P.(C). No. 20381 of 2011 -8- The provisions of Evidence Act are not applicable to cases of this nature and there is no allergy even to 'hearsay evidence', as made clear by the Apex Court as per the decision reported in **State of Haryana & Another** v **Rattan Singh** (1982 1 LLJ 46) and **Sri. J.D Jain** v. **The Management of State Bank of India and Another** (1982 (1) LLJ 54). It is also relevant to note that, there is no case for the petitioner that Ext.R1(a) is a spurious document and that no such marriage was ever registered before a statutory authority. The only objection raised from the part of the petitioner is that, it has not been properly proved by the Department and the burden of proof cannot be shifted to the petitioner, in so far as the same stands upon the Department. 10. As mentioned hereinbefore, the degree of proof applicable in disciplinary proceedings being entirely different and of much lesser standard, the point to be considered is whether the Department has satisfied its initial obligation. On receipt of the complaint from the second wife, necessary enquiry was conducted, leading to issuance of charge sheet, giving opportunity to the petitioner to explain the position. It was in the course of further proceedings that, a copy of Ext.R1(a) Marriage W.P.(C). No. 20381 of 2011 -9- Certificate was procured and produced, besides Ext. R1(b) proceedings of Family Court, Thiruvananthapuram. By virtue of the materials on record, it is clear that, the initial burden on the part of the Department has already been satisfied. In so far as there is no case for the petitioner that Ext.R1(a) Marriage Certificate is a spurious one, no much significance or relevance can be given to the contention put up by the petitioner that the petitioner does not have any burden of proof. This is more so when, there is no plea of 'malafides'. As such, the finding and reasoning given by the disciplinary authority vide Ext.P3 order, confirmed in appeal by the second respondent vide Ext.P5 order, and finalized by the third respondent/revisional authority as per Ext.P7 order, do not call for any interference. 11. The remaining question is whether the punishment imposed upon the petitioner is harsh or not. 12. It is relevant to refer to the Rule position in this regard and hence Rule 21 of CCS Conduct Rules is extracted below: ## “ **Rule 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: -10- W.P.(C). No. 20381 of 2011 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.” Ignorance of law is no excuse and the petitioner does not stand to be an exemption, who entered into service of the first respondent, to serve the Department in accordance with the relevant Rules. Rule 21(2) clearly imposes a statutory bar in contracting second marriage during the subsistence of an earlier marriage. Since the finding that the first marriage of the petitioner with another spouse was subsisting at the time of the second marriage stands upheld, the misconduct alleged against the petitioner stands proved and as such, there is no room for interfering with the punishment. However, in the course of third round of litigation by way of revision before the third respondent, much leniency has been shown considering the young age of the petitioner, who was only 26 at that point of time. It was W.P.(C). No. 20381 of 2011 -11- accordingly that, the punishment of ' **dismissal** ' from service was modified as ' **removal** ' from the service, thus enabling the petitioner to apply for and obtain some or other civil jobs. It is also relevant to note that, the respondents were gracious enough towards the petitioner in so far as, no proceedings were launched for prosecution in respect of the offence under the Indian Penal Code. In the above facts and circumstances this Court finds that, there is absolutely no merits or bonafides in the writ petition. None of the grounds raised in support of the same does serve the purpose. The writ petition is dismissed accordingly. ## **P.R. RAMACHANDRA MENON, JUDGE.** kp/-