Dismissal of woman from service for unknowingly marrying a married colleague is too harsh and disproportionate a punishment

Allahabad High Court: Deciding a petition where a woman police constable was dismissed from service and deprived of all consequential benefits for marrying her co-constable, who was already married and for solemnising the marriage without seeking the prior permission of the department, the Bench of Mahesh Chandra Tripathi, J. held that the punishment of dismissal from service is too harsh and disproportionate to the conduct of the petitioner and the directed the respondents to reinstate her in service forthwith with all consequential benefits.

The husband was merely awarded censure entry, whereas the petitioner was found guilty by way of a departmental enquiry under Rule 29(2) of the U.P. Government Servant Conduct Rules, 1956 and awarded a harsh punishment of dismissal from service. The petitioner contended that she had no knowledge about the first marriage of  her husband and that he had a living wife and hence, had not committed any misconduct. The petitioner cited the case of Shravan Kumar Panday v. State of UP, (2010) 8 ADJ 243 wherein it was held that whoever violates the provisions of Rules 29(1) and (2) shall be awarded with minor penalty and awarding a punishment of dismissal is a major punishment which is against the spirit of Rule 29.

The respondent vehemently opposed the petition on the ground that as per the provisions of Rule 29 of the 1956 Rules, second marriage is impermissible and once it has been accepted by the petitioner, that her husband was already married and he has living wife and four children, no leniency is required in the matter.

The Court agreed with the petitioner’s contention that according to Section 17 of the Hindu Marriage Act, no marriage between two Hindus could be solemnised, if one of them has a husband or wife living and if such marriage is solemnised after the commencement of this Act, it would be null and void. The provisions of Sections 494 and 495 of the Penal Code, 1860 shall apply in such cases. Applying this law, the marriage of the petitioner was null and void under law and no punishment could be awarded against her under Rule 29 of the 1956 Rules. 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 Rule 29 of the 1956 Rules.

The Court held that it will be open to the respondents to award any minor punishment against the petitioner,if they think proper in the facts and circumstances of the case, after affording her full opportunity of hearing. [Aneeta Yadav v. State of  U.P,  2016 SCC OnLine All 294, decided on 2 May 2016]

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