New Delhi [India], October 18 : Delhi High Court, in a recent order, has quashed the dismissal of a Central Reserve Police Force (CRPF) Personnel over his second marriage after getting a customary divorce from his first wife in the presence of the village Panchayat.
At the time of the second marriage, the divorce was not granted by the court of law. Subsequently, he was granted a divorce by mutual consent of the parties.
"In the circumstances of the present case, dismissal of the petitioner from service would result in a travesty of justice," the Delhi High Court said.
A division bench of Justices C Hari Shankar and Om Prakash Shukla quashed and set aside the dismissal order and subsequently passed an order against him in appeal and revision.
"Accordingly, the impugned order dated 27 February 2023, the appellate order dated 19 May 2023 and the revision order dated 23 November 2023 are quashed and set aside," the division bench ordered on October 13.
The bench observed, "Dismissal from service is an extreme step. It throws the family of the employee into disarray and brings, to an ignominious and abrupt halt, the family's source of livelihood. It is not, therefore, a step to be routinely taken, especially where the allegation against the employee does not involve an element of moral turpitude or financial or like impropriety."
The bench directed that the petitioner would be entitled to be treated as having continued in service and would be entitled to all benefits following continuity in service, including seniority and the benefits of pay fixation.
However, the petitioner would not be entitled to any arrears of pay for the period that he has not served the respondents.
The petitioner, Shailender Kumar, was dismissed from service by order of 27 February 2023, passed by the Commandant, 114th Battalion Jalandhar, Rapid Action Force.
He filed an appeal, and subsequently a revision petition against the order, which was dismissed on 19 May 2023 and 23 November 2023.
The petitioner moved a petition before the High Court through advocate KK Sharma and challenged the orders.
There were three charges against the petitioner, including that the petitioner had married one Sangeeta Dudhnath Vishwakarma on 30 May 2021, even while his marriage with his first wife, Chandra Kiran, was subsisting.
Secondly, the second marriage was solemnised without prior intimation to the respondents.
Thirdly, the petitioner had availed a child care allowance for taking care of, who was the daughter of his second wife, before her marriage to the petitioner, even before formally adopting her.
Petitioner's counsel submitted that before the authorities in the disciplinary proceedings, the petitioner adopted a specific stand that his marriage with Chandra Kiran had been dissolved by execution of a dissolution deed on stamp paper dated 29 March 2021 in the presence of the Panchayat.
This specific contention has been noted in the order of dismissal, the counsel Sharma argued.
The High Court noted that the Commandant, however, while passing the order of dismissal, has not addressed himself to the issue of whether the dissolution of the marriage on stamp paper, in the presence of the Panchayat, can be treated as a valid dissolution.
"There is, in fact no application of mind to this contention of the petitioner at all. The order merely records a blank finding that the marriage had not been validly dissolved," the High Court said.
The bench noted that petitioner had specifically pleaded, before the disciplinary authority, that the marriage had been validly dissolved by executing of a dissolution deed on stamp paper in the presence of the Panchayat of the Village.
This assertion on facts has been noted in the impugned order of dismissal, and has not been held to be incorrect. The disciplinary authority has not doubted the correctness or proof of this assertion, the High court said.
"In these circumstances, it is clear, at the very least, that the petitioner's marriage with Ms. Vishwakarma was a bona fide marriage, as the earlier marriage with Chandra Kiran, at least in the perception of the petitioner, stood dissolved by way of a dissolution deed on stamp paper executed in the presence of the Panchayat of the village," the bench observed.
The High Court referred to an order passed by the Supreme Court, which observed that the question of whether a marriage has been validly dissolved in accordance with existing custom is ordinarily to be decided by a Civil Court by leading evidence.
"The issue before us is whether the petitioner was validly dismissed from service. There can be no doubt about the fact that, if the petitioner's marriage with Chandra Kiran had in fact been validly dissolved," the High Court said.
"To dismiss the petitioner from service in such circumstances would, in our considered opinion, be unjustified," the High Court added.