Union of India Vs Pradeep Kumar

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2025:CGHC:6964-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WA No. 95 of 2025

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1 - Union of India Through the Secretary Ministry of Defence, New Delhi

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2 - The Inspector General, Headquarters South Bengal Frontier, Border Security Force 2- B Lord Sinha Road Kolkata

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3 - The Assistant Commander, Headquarters South Bengal Frontier Border Security Force 2- B Lord Sinha Road Kolkata

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4 - The Commandant 72^nd Battalion Border Security Force, Durgukondal, Tac Headquarter P.S. Kanker District - Kanker (C.G.)

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5 - The Deputy Commandant 72^nd Battalion, Border Security Force, Durgukondal, Tac Headquarter P.S. Kanker District - Kanker (C.G.)

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6 - Up- Samadeshta / Dandpal 72^nd Battalion, Border Security Force, Samrik Headquarter, P.S. Kanker District - Kanker (C.G.)

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--- Appellants

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versus

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1 - Pradeep Kumar S/o Shri Muneshwar Prasad Singh, Aged About 26 Years, R/o Village Lundra Police Station Lundra District - Surguja (C.G.)

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--- Respondent For Appellants : Mr. Ramakant Mishra, Deputy S.G. For Respondent : Mr. Aditya Kumar Mishra, Advocate on behalf of

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Mr. Ishan Verma, Advocate.

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Digitally signed by MOHAMMAD AADIL KHAN

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Judgment on Board

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Per Ramesh Sinha, Chief Justice 07-02-2025

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Heard on I.A. No.01/2025, application for condonation of delay in filing the appeal.

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After due consideration, I.A. No.01/2025 is allowed and the delay in filing the present appeal is condoned.

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The present appeal has been filed against the impugned order dated 09-07-2024 passed by the learned Single Judge in WPS No.3917 of 2014, whereby the order dated 28-11-2013 and dated 1012-2012 have been set aside and the matter has been remitted back to the concerned authority to consider it afresh.

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The appeal has been filed with the following prayer:-

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“It is, therefore, prayed that this Hon’ble Court may kindly be pleased to allow the appeal and set aside the impugned order dated 09-07-2024 passed in WPS No.3917 of 2014 by the Single Judge of this Hon’ble High Court, in the interest of justice.”

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Brief facts of the case as projected in the writ petition by the petitioner/respondent herein are that, the services of the petitioner are governed by the Border Security Force Act, 1968 (for brevity 'the BSF Act'). He was enrolled in the service on 07-10-2005. While he was in service, he was served with a show cause notice Annexure P-5 on 1010-2012. The allegation is that he has entered in the service book that

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his wife is Pratima Singh D/o Heera Singh, R/o Joradol, District Jashpur and without taking any decree of divorce from his first wife, he has entered into second marriage with one Hema Bai, D/o Shri Mahadeo Singh, therefore, the notice was served to show cause as to why he should not be retired from the service. The enquiry was opened and during the enquiry, a Ietter was also received by the Enquiry Officer by Annexure P-4 addressed by Sarpanch of Gram Panchayat, Lundra, Sarguja signed by the Secretary of Gram Panchayat, Lundra, Sarguja wherein it was informed that first wife of Pradeep Kumar the petitioner was not mentally fit, as such, she used to run away without informing. Pradeep Kumar got his wife treated at Ranchi Mental Hospital, however, she did not recover. Thereafter, the in-laws and the villagers went to bring her back but because of her mental retardness she refused to come and in her mental state of mind, she used to behave like insane. It was stated that the petitioner belong to Adivasi Gond wherein their society and culture allows the second marriage. Consequently, the society impressed upon petitioner to get married for the reason that the father and mother of Pradeep Kumar the petitioner were old aged persons. Consequently, Pradeep Kumar was married to Hem Bai, D/o Mahadeo of Village Bamba, District Jashpur as per their custom and second marriage was allowed by the society which was performed on 8^th July, 2012. During the course of enquiry, the petitioner admitted the fact that he has been married second time as the first wife was mentally retarded and the communication by the society of the Gond society stated that for the reason that the first wife was mentally

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retarded and was insane, she was being treated at Ranchi Mental Asylum despite that she did not recover and continued her behaviour in the fashion, as such, the society pressurized the petitioner to go for second marriage. It has been further submitted in the petition that thereafter, the Commandant BSF passed the order dated 10-12-2012 pursuant to Rule 26 read with Rule 7 of the Border Security Force Rules, 1969 (for brevity ‘the BSF Rules’) and made the petitioner to retire and the said order was subjected to challenge in departmental appeal and the departmental appeal was dismissed by the order dated 28-11-2013. Hence, the petitioner filed the petition challenging the order dated 28-11-2013 and order of his retirement dated 10-12-2012.

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Learned counsel for the appellants submits that the respondent has not taken any prior permission from the department concerned, i.e., Central Govt. for entering into second marriage. He contracted second marriage when his first wife is alive without taking divorce from a competent Court of law and further without prior permission from the competent authority, which is a major misconduct as defined in Rule 7 of the BSF Rules, 1969 as well as Rule 21(2) of the CCS (Conduct) Rules. The respondent/petitioner had been retired from service in accordance with the law after strictly following the due process. Hence, the impugned order dated 09-07-2024 may be set aside and the appeal may be allowed.

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Learned counsel for the respondent/petitioner has supported the impugned order.

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We have heard learned counsel for the parties and perused the documents annexed with the writ petition as well as the writ appeal.

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After considering the submissions made by learned counsel for the parties, the learned Single Judge has observed in the impugned order dated 09-07-2024 as under:-

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“8. Rule 7 of the BSF Rules is under chapter II of the BSF Rules, and the same speaks about the disqualification. It purports that the person in a service, if he enters into the second marriage, when the spouse is living, it would amount to disqualification provided that the Central Government may if satisfied that such marriage is permissible under the personal law applicable to such person, exempt such person from operating of this rule. Admittedly, this permission has not been obtained by the petitioner, though he speaks about and the documents have been placed which are writ large that the society to which the petitioner belongs i.e. Gond, permit the second marriage and under the circumstances since the first wife was mentally insane and despite getting her treated, she did not recover, he was pressurized by the society for second marriage. The documents are on record to show that the society admitted those facts that under what circumstances the petitioner was pressurized to perform second marriage, it also speaks that the first wife because of her insanity used to run away and the aged parents of the petitioner were to be looked after also and taken care, as such, it was felt by the society to get him married again.

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As far as the finding arrived at by the departmental enquiry is concerned, it shows that the petitioner fairly admitted under what circumstances, he went for second marriage, as the first wife was mentally insane and used to run away. During the enquiry, the petitioner admitted the same.

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The doctrine of proportionality, which is an aspect of imposition of punishment in service law comes for analysis, when the material on record

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shows that the punishment imposed by the disciplinary authority do not commensurate to the act done by a person. To evaluate the doctrine of proportionality, the Supreme Court in the case of Mukul Kumar Choudhuri (supra) held thus at paras 16 & 17 :

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“16. In Union of India v. G. Ganayutham [(1997) 7 SCC 463] this Court elaborately considered the proportionality in the administrative law in England as well as in our own country. The court considered some important English decisions, viz., Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [(1948) 1KB 223], Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374] , R. v. Goldstein [(1983) 1 WLR 151] and R. v. Secy. for Home Deptt. ex. p. Brind [(1991) 2 WLR 588] and few decisions of this Court, viz., Ranjit Thakur v. Union of India [(1987) 4 SCC 611], State of Maharashtra v. M.H. Mazumdar [(1988) 2 SCC 52], Ex-Naik Sardar Singh v. Union of India [(1991) 3 SCC 213], Tata Cellular v. Union of India [(1994) 6 SCC 651], State of A.P. v. McDowell & Co. [(1996 3 SCC 709] and summed up position of proportionality in administrative law in England and India thus : (G. Ganayutham case [(1997) 7 SCC 463], SCC pp. 478-79 para 31)

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“(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury [(1948) 1 KB 223] test.

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(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational - in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including

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proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles.

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(3)(a) As per Bugdaycay (1987 AC 514), Brind [(1991) 2 WLR 588] and Smith (1996 QB 517) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.

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(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

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4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

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(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14."

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Dealing with the question of proportionality with regard to punishment in disciplinary matters, the court said: (Ganayutham case [(1997) 7 SCC 463], SCC pp. 479-80, paras 32-34) :

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“32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not

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therefore go into the question of ‘proportionality’. There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury [(1948) 1 KB 223] nor CCSU [1985 AC 374] tests are satisfied. We have still to explain ‘Ranjit Thakur [(1987) 4 SCC 611]’.

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In Ranjit Thakur [(1987) 4 SCC 611] this Court interfered with the punishment only after coming to the conclusion that the punishment was in outrageous defiance of logic and was shocking. It was also described as perverse and irrational. In other words, this Court felt that, on facts, Wednesbury [(1948) 1 KB 223] and CCSU [1985 AC 374] tests were satisfied. In another case, in B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749] a three-Judge Bench said the same thing as follows: (SCC p. 762, para 18)

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‘18. … The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authorities or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.’

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Similar view was taken in Indian Oil Corpn. Ltd. v. Ashok Kumar Arora [(1997) 3 SCC 72] that the Court will not intervene unless the punishment is wholly disproportionate.

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In such a situation, unless the court/tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury [(1948) 1 KB 223] or CCSU [1985 AC 374] norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case [(1995) 6 SCC 749] that the Court might—to shorten

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litigation —think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi [(1995) 6 SCC 749] and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar [(1988) 2 SCC 52] cannot be of any help.”

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Having application of the facts in the present case, it appears that the reasons which have been assigned by the petitioner which is also supported by the society to which the petitioner belongs i.e. Gond he was pressurized to contract for second marriage, however the permission was not obtained as provided under Rule 7 of the BSF Rules.

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Prima face the order of retirement therefore shocks the conscience of the Court and following the principle laid down by the Supreme Court in case of B.C. Chaturvedi (supra), it would be apt to set aside the order of retirement, which has been passed against the petitioner and to send back the case before the concerned authority to reconsider the case of the petitioner afresh.

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In the result, order dated 28.11.2013 (Annexure P-1) as also the order dated 10.12.2012 (Annexure P-7) are set aside and the matter is remitted back to concerned authority to reconsider it afresh, in accordance with law and taking into observation made by the Court.

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As a sequel, the writ petition is allowed to the extent indicated above. No order as to costs.”

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The impugned order has been passed taking into consideration all the facts and circumstances of the case and the view taken by the Hon’ble Supreme Court in the matter of B.C. Chaturvedi (supra). After perusal of the impugned order passed by the learned Single Judge, we

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find that the matter has rightly been remanded back for reconsideration in accordance with law.

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In an intra-court appeal, no interference is usually warranted unless palpable infirmities are noticed on a plain reading of the impugned order. In the facts and circumstances of the instant case, on a plain reading of order, we do not notice any such palpable infirmities or perversities, as such we are not inclined to interfere with the impugned order. Accordingly, the present appeal is dismissed.

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Sd/-

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Sd/-

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(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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Aadil

Union of India v. Pradeep Kumar

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Union of India v. Pradeep Kumar

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