Contracting second marriage without the permission of the Central Government even if permissible under the personal law, amounts to misconduct

Tripura High Court– Deciding on a writ petition directed against the order of a court of inquiry whereby the petitioner had been ordered to be dismissed from services because the petitioner contracted a second marriage without seeking permission of the authority, the division bench comprising of Deepak Gupta C.J and S. Talapatra J., observed that the misconduct of the petitioner was serious enough to warrant his non-continuation in service but it was not so serious as to warrant forfeiture of all his service benefits. Punishment given to the petitioner was totally disproportionate to the misconduct.

In the instant case, the petitioner joined service as constable with the Border Security Force (BSF) and prior to his appointment in the Force, the petitioner was married as per Muslim law and this marriage was conducted probably in the year 1987. In October 2011 the petitioner contracted a second marriage without seeking permission of the authority, which is not a disputed fact. Thereafter, a Court of inquiry was conducted and on the basis of the inquiry report the petitioner was found guilty and ordered to be dismissed from service. The petitioner contended that he is a Mohammedan governed by Muslim Personal Law and as per his personal law he is entitled to enter into a second marriage, hence the conduct of the petitioner cannot be treated as misconduct.

The Court did not agree with the contention of the petitioner and highlighted that the proviso to Rule 21 of the Central Civil Services (Conduct) Rules, 1964 empowers the Central Government to permit a Government servant to enter into, or contract a second marriage, if it is satisfied that such marriage is permissible under the personal law and there are grounds for entering into the second marriage. Thus in this case, misconduct is the technical misconduct in not seeking permission of the authorities concerned. The bench further noted that it is not for the employee to decide himself without approaching the Government that he is entitled to get married a second time. Stating that petitioner’s act amounted to misconduct, however his misconduct was not so severe so as to disentitle him of all his service benefits. [Ghulam Nabi Shergujri v. United of India, 2016 SCC OnLine Tri 259, decided on 4.04.2016]

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